Dora Cisneros: A doctor's
wife and mother of five, Dora Cisneros led an ordinary suburban life
in Brownsville, Texas.
attention on her youngest daughter, Christina. So when Christina's
heart was broken, Dora took matters into her own hands.
In 1993, Christina's ex-boyfriend was gunned down outside his home. A
clue at the scene led police to a fortuneteller and Mexican faith
healer named Maria Martinez. She had hired the gunmen, at the request
of her longtime client, Dora Cisneros. The city of Brownsville was
shocked to see what the obsessed mother was willing to do to avenge
Dora was convicted of murder and sentenced to life in prison. A
successful appeal set her free, but persistent prosecutors won a
second conviction in federal court. Dora Cisneros is currently serving
a life sentence in federal penitentiary.
South Texas woman who had daughter’s
ex-boyfriend slain loses appeal
By Matt Peterson - DallasNews.com
November 10, 2008
The U.S. Supreme Court has refused to hear the
appeal of a South Texas woman who is serving a life term for arranging
the murder of a teenage boy who spurned her daughter, The Associated
Dora Cisneros, the wife of a prominent Brownsville
surgeon, originally asked her fortuneteller to put a curse on Joey
Fischer but, when she refused, then asked for the woman’s help in
having him killed, prosecutors say.
Mr. Fischer, 18, a high school senior, was gunned
down in 1993 outside his home as he was washing his car. His mother
found her son in a pool of blood, shot once in the head and once in
the chest. The water hose was still in his hand.
Ms. Cisneros, 70, had her state murder conviction
overturned because of an error by the prosecutor but was then tried
and convicted in federal court because prosecutors said the hit men
she hired came from Mexico. Her appeal took issue with that.
Maria Mercedes Martinez, the fortuneteller, is
serving a 20-year prison sentence for her role.
Valley woman convicted in murder-for-hire trial
By Mark Babineck - TexNews.com
May 13, 1998
HOUSTON (AP) -- A federal jury on Tuesday convicted
a Brownsville woman in the murder-for-hire plot that resulted in the
death of her daughter's ex-boyfriend.
Dora Cisneros, who was accused of hatching a plot
in which telephone calls and travel from Mexico were involved in the
1993 death of 18-year-old Joey Fischer, had no visible reaction to the
verdict. The victim's mother and stepmother sobbed at the decision,
which came after about three hours of deliberations.
"We're relieved," said Vernon "Beau" Nelson,
Fischer's stepfather. "This woman is a murderer of children. She needs
to be put away. Joey finally got some justice today."
Joey Fischer broke off his relationship with Mrs.
Cisneros' youngest daughter in the summer of 1992. On March 3, 1993,
he was shot to death in the driveway of his home as he washed off his
car before school.
Mrs. Cisneros was sentenced to life in prison in
1994 following a murder conviction in state court. However, an error
in jury instructions won her an acquittal from an appeals court in
To make a federal case, prosecutors this time had
to prove Mrs. Cisneros was involved in a plot that included travel and
phone calls from nearby Mexico. She didn't need to know about the
"foreign commerce" under the statute.
She could face up to life in prison when she is
sentenced July 27 in Houston. Until then, she'll remain at the nearby
Montgomery County Jail without bond.
"My son's murderer is going where she belongs,"
said A.J. Fischer, the boy's father. "We've been here before.
Hopefully what was done today, will stand."
Mrs. Cisneros' family and defense attorneys
declined to comment on the verdict. Prosecutor Assistant U.S. Attorney
Mervyn Mosbacker said he was pleased with the quick decision.
In both trials, prosecutors presented witnesses who
testified that Mrs. Cisneros first asked a folk healer to cast a fatal
spell on Fischer for breaking up with her daughter. The fortuneteller,
Maria Mercedes Martinez, says she declined, prompting Mrs. Cisneros to
inquire if Ms. Martinez knew anyone who could kill Fischer.
That's when Ms. Martinez set the wheels in motion
through Daniel Garza, a lovelorn San Antonio housepainter who had
sought Ms. Martinez' help for marital troubles.
Ms. Martinez, 77, is serving a 20-year prison term
for her role.
Garza, serving a life sentence for finding the two
gunmen who shot Fischer, testified he discussed the plot with the folk
healer during four phone calls he made from Mexico. However, there is
no documentation the calls were made.
Also, prosecutors said testimony by U.S. Customs
officials, a motel manager and witnesses at the crime scene pinpointed
a white car driven by the suspected gunmen as having come over from
Mexico the day before the shooting.
"All we have to prove is somebody came from Mexico
to the United States to commit this murder. And we did that,"
Assistant U.S. Attorney Mervyn Mosbacker told jurors in his final
Despite 5-1/2 days of testimony and piles of
circumstantial evidence, lead defense attorney Tony Canales told
jurors they hadn't seen enough proof to meet federal standards.
"I submit to you that a clear conscience dictates
that proof beyond a reasonable doubt was not met," he told the jury.
"Whether you like it or not ... you've got to do the right thing."
The suspected killers are jailed in Mexico and did
not appear in the courtroom in Houston, where the case was moved by
U.S. District Judge Filemon Vela because of intense publicity in the
Rio Grande Valley.
Mrs. Cisneros did not testify in her own defense.
After Prosecutor's Error, Woman Convicted of
Murder Is Freed
The New York Times
March 3, 1996
Two years ago, a jury in this border town sentenced
the wife of a prominent doctor to life in prison after convicting her
on murder charges. Prosecutors said she had given a fortune teller
$3,000 to arrange the murder of a high school honor student she blamed
for jilting her youngest daughter.
Now, as the third anniversary of Albert Joseph
Fischer Jr.'s killing approaches, the woman, Dora Garcia Cisneros,
walks free, the result of a prosecutor's error and a Texas appeals
court that ordered her acquittal.
On Feb. 22, Mrs. Cisneros, 58, was released from a
Texas women's prison after appellate judges ruled that prosecutors
here in Cameron County had presented evidence of a murder conspiracy,
and then effectively asked the jury to convict her of direct
participation in the crime.
"I'm just absolutely livid that they're going to
allow this lady to move back to town and take up life like nothing
ever happened," said Buddy Fischer, the victim's father.
His 18-year-old son, known as Joey, was a popular
student at his high school when he was shot on March 3, 1993, in the
driveway of the family's suburban home.
Testimony in the 1994 trial painted Mrs. Cisneros
as a mother obsessed because Joey Fischer had ended a relationship
with her daughter; she was said to have offered him $500 to get back
together with her daughter Cristina. Evidence pointed to a conspiracy
that led from the mother, through a fortune teller, Maria Mercedes
Martinez, and another of her clients, to two men the Texas authorities
say were the gunmen. The men, Mexican nationals, are being held in
Mexico on other charges.
Mrs. Martinez pleaded guilty to murder conspiracy
and is serving a 20-year sentence. She was an important witness in the
prosecution's case against Mrs. Cisneros.
In its January ruling, the appeals court ordered
Mrs. Cisneros acquitted, so she cannot be retried for the killing on
state charges. Although the court agreed she participated by giving
money, a photograph and instructions to the fortune teller, it said
there was no evidence that she had contacted the killers herself, and
insufficient evidence that they were the ones who had carried out the
The Cameron County District Attorney, Luis Saenz,
who declined to be interviewed about the case, has appealed the latest
ruling to the state's highest appeals court.
Two lawyers who are advising the Fischer family
said that the prosecutors had made a "rookie error."
"Do not hold the law responsible," said one of the
advisers, David Berg, a Houston trial lawyer. "This is not a
technicality or a fluke in the Texas law. This was negligence."
Cathy Herasimchuk, a Houston lawyer who specializes
in appeals and is an adviser to the Fischer family, is more
The Texas statute on murder-for-hire, Ms.
Herasimchuk said, "is really very difficult to use when the paymaster,
the mastermind, insulates herself from the triggerman."
Mr. Fischer, however, holds the appeals process
responsible. "What the court of appeals has done is overturn what the
jury decided," he said. "The appeals court didn't hear the case; the
Mrs. Cisneros's husband still practices medicine in
Brownsville, and declined to be interviewed. The family's eldest
daughter continues in her job as assistant principal of a Brownsville
school. Cristina Cisneros attends college out of town.
In instances when family members have spoken
publicly, they have said that Mrs. Cisneros is innocent.
Mr. Fischer said: "How do you tell your children
that we live in a society where murderers go free?"
Mother Gets Life Sentence
April 20, 1994
A Brownsville woman has been sentenced to life in
prison for paying two men $3,000 to kill the teen-ager who had spurned
Under the terms of Monday's sentence, the
defendant, Dora Garcia Cisneros, 56, must serve at least 30 years
before she is eligible for parole. Daniel Garza, who admitted passing
$3,000 from Mrs. Cisneros to the killers, received the same sentence.
Prosecutors said Mrs. Cisneros became so upset
about 18-year-old Joey Fischer's breakup with her daughter that she
plotted for months to find someone to kill him.
A 73-year-old fortuneteller, Maria Mercedes
Martinez, testified that she had delivered the money to Mr. Garza from
Mrs. Cisneros. Mr. Garza, 43, said that he gave the money to the hit
men but that he thought they would only beat Mr. Fischer, who was
instead shot to death.
MURDER ON THE
Joey Fischer was a teen-age
honor student who flourished in the Texas border culture, but his
death revealed a side of that culture he’d never imagined.
By Marie Brenner
Last fall, my eighteen-year-old cousin Joey Fischer
was assigned to read Gabriel García Márquez’s "Chronicle of a Death
Foretold." Joey’s English teacher, Janice Johnson, believed that her
honors students at St. Joseph Academy, a private school in
Brownsville, Texas, on the Mexican border, needed to stretch
themselves by taking on serious themes, such as the notion of
mortality. In the book, Santiago Nasar, an amicable and rather
feckless twenty-one-year-old, is murdered because he has possibly
violated a daughter of the local town. Mrs. Johnson didn’t care that
her students might not appreciate Márquez’s literary style of magic
realism–his baroque chronicle of this particular killing which
gradually reveals more and more details–but she was hoping that they
would understand, and even be intrigued by, the subtext: that of a
Latin culture in which a murder might be considered morally
justifiable when it is motivated by the loss of a young woman’s honor.
"This couldn’t happen," Mrs. Johnson later recalled Joey and his
friends saying of the García Márquez novel. "This kind of thing only
happens on soap operas."
Joey, whose full name was Albert Joseph Fischer,
Jr., was slim and had neatly trimmed brown hair, a narrow face, and a
wry smile; he was one of Mrs. Johnson’s most challenging students. At
times, he could be as heedless as any other teen-ager, but she was
impressed by his conversation, which was often serious. Joey had a
deep voice and loved to bounce big words like "plethora,"
"lugubrious," and "pusillanimous" around with Mrs. Johnson. People who
knew him often talked about him first in terms of his accomplishments:
he had a 98.5 grade-point average for his senior year; he was eleventh
in his class; and he had been immediately accepted into the honors
program at the University of Texas at Austin. It could be argued that
Joey’s confidence in his academic abilities gave him a certain margin
to try to push his teachers to their limits. Joey always had a remark
to make, on any subject. "One of these days, your mouth is going to
get you in trouble," Mrs. Johnson often teased him.
However much Mrs. Johnson tried last year, she had
a hard time getting Joey’s class to appreciate the rich ironies of
"Chronicle of a Death Foretold." Joey told a friend of his that he
thought all the omens were "ridiculous." He gave the friend the
impression that he regarded the García Márquez novel as an
anachronism, a throwback to the repressive sexual mores of Catholic
mothers who chanted endless Rosaries to purify their daughters who had
been degradadas. Joey said to Mrs. Johnson, "All the books you
seem to pick for us are so morbid."
Mrs. Johnson was not originally from the border. As
an outsider, she had a sharp sense of all the many contradictory
aspects of the culture. St. Joseph Academy–and, for that matter,
Brownsville–was at least eighty-five per cent Mexican-American. It was
frequently said that the school, like the city, was "a mix of
cultures," but it was impossible to think of either St. Joe, as the
school is known, or Brownsville as an Anglo-versus-Hispanic world.
Outside South Texas, it is often presumed that there is a continuing
culture clash between the local Anglos and the Mexican-Americans. In
fact, the closer you are to the border, the more the worlds meld
together; ethnic and racial considerations are secondary to how rich a
family is or how long it has lived in the area. On the border, the
assumptions that outsiders make about the area often seem patronizing,
because the Mexican-Americans define the culture and are its political
power structure. It is common for the Mexican-Americans to tease their
Anglo friends affectionately by calling them gringos, or even
bolillos, meaning "white bread."
As an Anglo, Joey was most friendly with the
Mexican-Americans in the school who were "second or third generation
from across"–middle-class children whose last names were Ayala or
Gonzalez, the kind of kids who wore boat shoes and polo shirts,
sometimes applied to the Wharton School or Brown, and, at home, spoke
Spanish mostly with their grandparents. This Brownsville world of
established families does not show up in movies like "The Border" or
"El Norte," for it is a society of subtle distinctions, in which
Mexican-Americans and Anglos live in the same neighborhoods and go to
the same schools and dances.
Joey and his friends could speak a perfect border
Spanish, trilling their "r"s like natives, but for all their fluency
in the language Mrs. Johnson remained convinced that they were unaware
of the oddity of their environment. Brownsville is at the southern tip
of Texas, across the Rio Grande from the Mexican city of Matamoros,
and twenty-five miles from the Gulf of Mexico and the beaches of South
Padre Island. It is a community of Bonanza restaurants, cineplexes,
department stores, yogurt shops, and malls, where a small but
significant number of the population truly believe that they have seen
the Miracle Virgin of Guadalupe appearing in the clouds, on their
tortillas, or, just recently, in the knot of a tree. It is a city
where there are curanderos and curanderas–Mexican
medicine men and women, sometimes benign but sometimes somewhat
sinister, who practice brujería, or witchcraft. For a fee, the
local curanderas will prescribe herbs for indigestion or employ
spells, oils, and incantations–and, on occasion, tarot cards–to put
the mal ojo, or evil eye, on straying boyfriends or
unfaithful wives. A few miles from St. Joe, there are several
storefronts advertising velas mágicas, aceite de
suerte, sahumerio–magic candles, lucky oil, specially
prepared incense–and other tools of
curanderismo. Neither Joey nor his private-school friends appear
to have ever shown the slightest interest in these things.
March 3rd, in the sweet, nervous time of his last months of high
school, Joey was up early, as usual. He put on one of the St. Joe
uniforms–navy trousers and blue-and-white button-down–and then tried
to get his younger brother, Eric, out the door; Joey always drove Eric
to school. Just before seven o’clock, Joey went into the garage and
backed his mother’s car into the circular driveway. The traffic was
light on Highway 77/ 83, visible just beyond an allée of palm trees in
front of his house, on Cortez Avenue, in Rancho Viejo, an
upper-middle-class community to the north of Brownsville. By
Brownsville standards, Joey’s neighborhood was rich. A number of
doctors and lawyers lived there, and so did executives of the local
maquiladoras, the factories of vast American and Taiwanese
companies, such as A.T. & T. and Zenith, in Matamoros. Rancho Viejo
was the kind of place where people describe the houses by their
measurements, as in "Look at the Hernándezes’–they have fourteen
thousand square feet." One next-door neighbor, a Mexican national, had
in his front yard a dozen plaster statues of ancient Greek goddesses
holding urns. Compared with some of its neighbors, Joey’s house, a
stucco ranch, was modest; it had a swimming pool, but a relatively
Joey was one of only a few teen-age boys at St. Joe
who did not have cars of their own, but his mother, Corinne, regularly
let him borrow hers. After Joey backed the car up, he parked and got
out to wash the dust off the car windows–a morning ritual. He walked
to the front corner of the house, where the garden hose was curled on
the ground. Suddenly, someone came up to the house with a .38-calibre
pistol. As Joey stood with the hose in his hand, he was shot twice.
The killer fired at close range, and one bullet tore into Joey’s chest
and the other lodged in his brain. The killer did not use a
silencer–the gunshots could be heard inside the house. It was later
obvious to the sheriff that Joey’s killing was some kind of hit: the
assassin had clearly sought him out.
Inside the house, Corinne went to the window to see
what was going on. She thought, she later told Joey’s father, Buddy,
that maybe some palm fronds had fallen on the roof or a car had
backfired. She looked out the kitchen door but didn’t see her car. For
a moment, she thought Joey might have gone to a convenience store to
pick up something, but Eric told her that he saw her car in the
driveway. Then Corinne, not moving much more quickly than usual,
walked from the kitchen to the garage. When she opened the unopened
door of the two-door garage, she saw Joey, lying face up, in the
driveway. Later, Eric told his father that his mother’s scream was so
terrifying that it would haunt him for the rest of his life.
"Call 911!" Corinne shouted to Eric. "Call your
father!" she shouted to Joey’s older sister, Kathy. Immediately, Kathy
rushed to the telephone and called her father, who lived only a few
miles away. (Corinne and Buddy were divorced six years ago, and both
had remarried.) It was a few minutes past seven. Buddy was still
sleeping, and Joey’s stepmother, Connie, was getting ready for work.
Their five-month-old baby, Michael, was asleep in the next room. From
the bathroom, Connie heard Buddy answer the phone. "What happened?"
she asked. Buddy told her, "My son has been shot!" Connie had to stay
with the baby, so Buddy pulled on a pair of jeans and a shirt and
raced his car down Tandy Road, a shortcut to Highway 77/83, which led
to Joey’s house. He sped past the Rancho Viejo National Bank and Kay’s
Cactus. He had no idea how fast he was going; at some point he looked
down at the speedometer and noticed that it registered a hundred and
ten miles an hour. He made frantic gestures with his left hand, as if
to brush other cars out of his way. At that early hour, the highway
was almost deserted. As he approached the red tile roofs of Rancho
Viejo, he didn’t wait to get to the exit; he crossed the grass divider
and careered through the allée of palm trees. He could see the
flashing red lights of the Rancho Viejo police patrol cars; he felt
himself go numb. He saw Corinne, sobbing, in the garage with Eric.
Then he saw Joey lying in the driveway. When he got near his child, he
saw that Joey was holding the garden hose. Nonsensically, he waited
for Joey to see him and to say, "Hey, Dad, what’s up?"–his standard
greeting. The flow of the water from the hose had covered the driveway
In the kitchen, Kathy telephoned Joey’s closest
friend, Patrick Aziz. She was crying hysterically, "Patrick, did Joey
have any enemies?"
Patrick couldn’t think of anyone who disliked Joey.
By the time Patrick got to school, he was almost incoherent, and
stammered badly when he encountered Mrs. Johnson in the teachers’
"My word, what is the matter with you?" Janice
Johnson remembered asking him.
"They killed Joey," he told her.
Mrs. Johnson said, "What?" Then, "Do you
have any idea who would want to do this?"
"Yes," Patrick said, remembering some boys he and
Joey had got into a fight with at a football game.
Mrs. Johnson had a strange feeling that "this is
going to come right back to our doorstep," she told me much later.
Corinne, Eric, and Kathy immediately moved into
Corinne’s mother’s house. According to Buddy, Corinne was in shock,
but she knew, she later told friends, that she could never spend one
more night in the house where her son had been murdered.
grew up with Buddy, in San Antonio.
My father owned a small chain of discount department stores which had
been started by my grandfather, Buddy’s great-uncle. Buddy’s father,
Albert Fischer, was a surgeon, the chief of surgery of a local
hospital. Buddy’s mother, Ella Zuschlag, was a highly respected
pediatrician. His father and my father, both of whom still live in San
Antonio, are first cousins, and so close that they are more like
brothers; their connection is powerful, rooted in the nineteenth
century in central Mexico, where their fathers, best friends from a
small town in the duchy of Kurland, on the Baltic Sea, married two
sisters and settled in Aguascalientes, hoping to strike it rich. By
1911, during the revolution, four Brenner children and two Fischer
children were living in Aguascalientes. Pancho Villa’s troops massed
in front of their ranch. Our grandmothers were often frightened by the
local superstitions and folkways. From time to time, my grandmother
told me years later, they found on their porches dead chickens or
bananas wrapped in red cloths. They had no idea what the chickens and
bananas meant. In the years when the revolution was brewing, a comet
streaked across the sky, and my aunt Anita Brenner’s nurse, Serapia,
held her up to look and said, "It means war, death, misery, hunger,
and disease." Soon after, it rained ashes for a night and a day from a
distant erupting volcano. Nearly two decades later, Anita wrote of
these events in "Idols Behind Altars," a study of Mexican art and
anthropology, published in 1929. The Brenners and the Fischers stayed
in Mexico for only eleven years (they left during the revolution), but
for eighty years most of my family has been unable to move any farther
away from Mexico than South Texas. With time, the closeness of the
clan weakened, but many of us have been drawn to the totems of the
culture that drew our grandparents; our houses are full of Mexican
paintings and religious kitsch. "For the dust of Mexico on a human
heart corrodes, precipitates. But with the dust of Mexico upon it,
that heart can find no rest in any other land," Anita wrote in "Idols
Since the Brenners and the Fischers left Mexico,
many interesting things have happened in our family. We have had
relatives who achieved a degree of notoriety in Mexico for their
various accomplishments; we have had the usual family betrayals,
leading to arguments that wound up in litigation and court fights.
There have been, as in most families, happy times and chilly remarks,
broken relationships, money made, money lost and made again. We have
had doctors, writers, newspaper editors, total failures,
revolutionaries, merchants, lawyers, Communists, right-wingers. But
until Joey was killed we had never had a murder in the family.
Some weeks after the killing, Buddy sounded
withdrawn and tired on the telephone. A man who had always prided
himself on his stoicism, he was now trying to stay in control of his
emotions. The death of a child is every parent’s nightmare; the murder
of a child is almost unimaginable. I had a sense from my father that
my cousin was not only grief-stricken but also concerned that Joey’s
killer, whoever he was, might never be brought to justice. Corinne,
who may have shared his concern, had withdrawn completely, grieving in
and I had known each other well as children, but I hadn’t seen him in
nearly twenty years. On my first morning in Brownsville, I waited in
the lobby of the Sheraton for my cousin and his wife to pick me up.
Buddy and Connie work at a local maquiladora, kemet de Mexico,
a South Carolina electronics company that manufactures millions of
electrical capacitors a day in Mexico. Buddy, a former banker, is a
buyer and is implementing a new automated purchasing system for the
factories in Mexico; Connie is an executive in charge of maintaining
the quality of the product for all the Mexican factories. She worked
her way through college and then took an M.B.A. in South Carolina.
Connie’s intelligence and direct manner are not unlike those of
Buddy’s mother, the only woman interne in her year at Robert B. Greene
Hospital, in San Antonio.
As I waited for Buddy and Connie, tropical storm
clouds from the Gulf of Mexico darkened the sky; the air was heavy, as
if hurricane season were near. The palm trees in front of the Sheraton
were bending in the wind. Many of the men who walked into the hotel
were wearing guayaberas, shirts with pockets and pleated fronts.
Suddenly, an athletic-looking man with a mustache, accompanied by a
pretty blonde, walked up to me. It took me a moment to realize that
they were my cousin and his wife. We walked through the parking lot to
his car, a Subaru with a baby’s seat in the back. I noticed a plastic
shopping bag filled with newspapers in it. "You need to read all of
them," Buddy said. "These are all the clippings that have been in the
papers since Joey was shot."
"It’s Brownsville" is an expression used by local
Anglos and Mexican-Americans alike. It is meant to explain the
lassitude of the city, the mañana attitude. "It’s Brownsville" is the
reason given that, some years ago, Pan Am, after using the city as its
South American headquarters for twenty-five years, finally moved away;
Southwest Airlines lands in nearby Harlingen, which remodelled its
airport and will be able to service the boom that the region has been
anticipating if the North American Free Trade Agreement takes effect.
For a long time, there has been a feeling that
Brownsville will become a boomtown at any moment, but in the last few
years the city’s economy has been depressed. "I think it’s getting
better," a friend of Buddy’s remarked to me. "It used to be when we
would go through town there were no cars at the light. Now there are
at least six." Since 1985, nearly a hundred major factories have
opened in the industrial parks of Matamoros and the nearby Valle
Hermoso. Matamoros is now a large industrial city with a population of
almost a million. Brownsville’s development has been slower, although
the city now has about a hundred thousand residents. "If General
Motors has twelve thousand people at its plants in Matamoros, they
might have eighteen working in Brownsville," a local businessman told
me. It is often difficult for outsiders in Brownsville to understand
that the city’s power structure, which has slowly favored the ascent
of Mexican-Americans, who now dominate political office, is
representative of the city’s melded culture. These local politicians,
like those anywhere in the United States, concern themselves with such
matters as passing bond issues for a new convention center.
The closer you are to downtown Brownsville, the
closer you are to Mexico. Just two or three blocks in any direction
from Market Square and the cathedral, it is difficult to tell that you
aren’t in Mexico. In downtown Brownsville, most of the signs are in
Spanish. Soap operas blare out from dusty shops of ropa
segunda; dozens of these secondhand-clothes stores line Adams
Street, one of the town’s main thoroughfares. Fat blossoms of
bougainvillea trail off Cyclone fences around many of the small frame
houses a few blocks from the Rio Grande.
Many women who come to Brownsville with their
husbands join a group called Border Maquiladora Wives. It is intended
to help Anglo newcomers become acclimated, but it occasionally becomes
a forum for anxious discussion about the area’s drug smuggling and
violent deaths, which are often reported in the Brownsville Herald.
On some level, these newcomers may actually be baffled by what they
view as the heavy folk-Catholic underboil to the culture–a sense that
some ideas from el otro lado ("the other side") remain
On my flight to Harlingen, I overheard a
well-dressed Anglo woman talking to the woman next to her: "You go to
a restaurant and all they speak is Spanish. You go to the beauty shop
and all they speak is Spanish. I don’t know if they are laughing at
me. I don’t know what they are saying." Like our grandmothers at the
turn of the century, some of the maquiladora wives are put off
by the local customs. They worry about the coyotes,
sinister-looking men who sometimes circle the good neighborhoods to
collect their weekly payment from illegals they have smuggled across,
who now work as maids in the air-conditioned houses of the Anglos. And
there are wives who find nothing charming about the local H.E.B.
grocery chain, which has cafés that sell gorditas,
fried-cornmeal pockets filled with beans and cheese or whatever you
want. There are times when you cannot see an Anglo face in a grocery
store. At the meetings of the wives’ group, the women sometimes talk
as if they were expatriates, trying to cope in a colonial outpost.
In Brownsville, the story of Joey Fischer’s murder
was given a banner headline on the front page of the Herald:
"ST. JOE PUPIL SHOT TO DEATH IN DRIVEWAY." A photograph of his body
covered in a bloodstained coroner’s cloth took most of the width of
the front page. Buddy is prominent in town–he used to be the president
of a local Rotary Club and was also active in a community group called
Leadership Brownsville–and Joey’s grandfather on his mother’s side,
Louis Lapeyre, had once been mayor of Brownsville, so it was not hard
to understand why Joey’s death was big news in the Rio Grande Valley.
Already, his short life was reduced to sound-bites. He was "the honor
student," "eleventh in his class."
On the night before his funeral, more than six
hundred people came to a Rosary service for him at St. Mary’s Church.
His parents had decided that there should be an open casket with a
kneeler, so that whoever wanted to could pray by the coffin, in the
traditional Catholic manner. Corinne’s family, who were originally
"Louisiana French," as one friend put it, were devout Catholics.
Although Buddy’s father is Jewish, when Buddy married Corinne he
converted to Catholicism and became active in his church. The funeral,
also at St. Mary’s Church, was jammed with friends. Besides all of
Corinne’s and Buddy’s acquaintances, many people from St. Joseph
Academy appeared. Joey’s girlfriend Marianela Caballero and her mother
attended both the Rosary and the funeral, and sat in a pew, sobbing.
Joey’s family came up to Marianela to reassure her, saying, "Don’t
worry, he looks just like himself." Nearby sat a former girlfriend,
Cristina Cisneros, also weeping. Although many parents of St. Joe
students came, Cristina’s mother was nowhere to be seen. Victor Ayala,
who had been a friend of Joey’s since kindergarten, had volunteered to
give a eulogy. Victor suddenly found himself having to reconstruct the
history of a childhood friendship, and he was so worried about writing
the speech that he felt unable to bring his close friend into focus.
For days after the funeral, Buddy and Connie’s
house filled with friends. It was a long weekend, one of them told me,
during which the parents of the teen-agers who had known one another
since they were toddlers felt so intimately connected with Joey’s
death that they could think of little besides their inability to
protect their own children. Joey’s murder came to represent their own
fears and sense of powerlessness. Buddy’s neighbor Mike Gonzalez, a
partner in a local advertising agency, had seen Joey almost every
weekend at his father’s house. His own son went to Pace, a public high
school in Brownsville. After Joey was killed, Gonzalez became very
strict with his son. "If it could happen to Joey Fischer, it could
happen to any of our children," Gonzalez said. Another friend
recalled, "We left Buddy’s house sobbing, imagining our own children
lying in our driveways."
"How are you sleeping?" I asked Buddy on our first
"Not well," he said. "I have terrible dreams. Often
I stay up all night long just so I won’t have nightmares." Buddy and I
were sitting in the living room of his house–a modern house, with
comfortable beige sofas and a large kitchen filled with cooking
equipment and a sheaf of recipes clipped from Southern Living.
He was smoking cigarette after cigarette and got up many times to show
me yet another picture of Joey. "It’s like I am living somebody else’s
life," he said. "I had a wonderful son for eighteen years."
Later that night, Buddy and I drove by Joey’s
house. Buddy was driving fast; he wanted to show me the route he had
travelled when he learned that Joey had been killed. We drove north on
Highway 77/83; Buddy’s face was hard in the darkness. He took the exit
for Rancho Viejo and then parked in front of the small house on Cortez
Avenue. A "For Sale" sign stood in front of the house. Suddenly, Buddy
said, "Another father might say, ‘If Joey came back, I would make this
right with him.’ Or ‘I would make that right with him.’ But I don’t
feel that way." He waited a moment. "I wouldn’t change anything about
Joey," he went on. "Not one thing. I want my son back just the way he
was." For the only time in the days we were together, I saw Buddy’s
eyes fill with tears.
eighteen, Joey’s personalitywas still in formation, but he loved
basketball and computers, and often talked about his desire to become
an engineer. At school, his class voted him, along with two others,
"most sarcastic," and they posed for their picture carrying a sign
that read "What Us Sarcastic?" He had a fine sense of the absurdity of
high school. Once, a teacher took two balloons away from Joey and put
them in a closet. A few days later, Joey asked for his balloons back.
The teacher opened the closet and a bunch of balloons floated out.
Joey waited a full beat. "That’s what happens when you leave two
balloons alone," he said.
For an adolescent, Joey sometimes showed a
surprising concern for his parents. In the spring of 1992, when his
stepmother, Connie, was six months pregnant, she received a note from
him. "So the baby is due in late September. I wonder if he’ll look
like Mikey from ‘Look Who’s Talking’ or like Wally from ‘The Beaver.’
Either way, he should look pretty funny. But don’t you worry, I’ll
take good care of him." Joey was twelve when his parents divorced, and
he had had a hard time, but he and his father maintained their close
relationship. There was never a Lakers game that Joey did not try to
watch with Buddy.
Joey and his friends often complained that there
was almost nothing to do in Brownsville. The parents of the girls they
dated did not want them to drive to the beaches of South Padre Island
except on special occasions. Across the Rio Grande was Matamoros, long
the equivalent of a theme park for Texas teen-agers, with its easy
liquor and, before the age of aids, quick and memorable sex in the
red-light section. Soon after Joey and many of his friends got their
driver’s licenses, at age sixteen, they visited the bars in "Mata"
from time to time–places like Blanca White’s and Hobie.
By the end of their junior year, the raffish
atmosphere of Matamoros had become less appealing to them. Joey and
his friends knew that their parents worried about occasional shootings
in the bars and about people being kidnapped off the streets.
Matamoros had had a lot of bad publicity in 1989, when Mark Kilroy, a
University of Texas student, on the border for spring break,
disappeared from a bar in Matamoros. His body and at least a dozen
others were found buried on a desolate ranch nearby, apparently the
victims of a cult involved in the drug trade whose members believed
that sacrifice would make them invincible. The appearance of a satanic
cult a few miles from their quiet neighborhoods had terrified many of
the St. Joe parents whose children were old enough to get their
People in Brownsville sometimes say that the
parents who send their children to St. Joseph Academy want them to be
"part of the St. Joe mafia" and "meet the right kind of people." St.
Joe is one of the few private schools in Brownsville; the tuition is
three thousand dollars a year, and ninety-eight per cent of the
students go on to college. The school occupies a red brick building in
Rio Viejo, one of the most elegant of the Brownsville neighborhoods.
The building, which has open-air corridors and
patios, to take advantage of the mild Brownsville winters, stands near
a resaca, one of many charming old cutoff river channels to be
found all over Brownsville, and is surrounded with flowering cenizo
shrubs, which are indigenous. Most of the children at St. Joe are
wealthy: the sons and daughters of the rich families of the Rio Grande
Valley; the children of Taiwanese entrepreneurs who came to the border
to run the maquiladoras; and even the children of several
rumored drug and arms dealers in the area. In the morning, the St. Joe
parking lot fills with expensive cars, some of them, it has been
thought, surely belonging to drug dealers’ children.
The counselling problems at the school are
idiosyncratic in the extreme; guidance counsellors had to use special
expressions like being "in the paper a lot" when one of the
fathers–allegedly a member of a Matamoros-based drug ring linked to a
Colombian drug cartel–was indicted last year. On the surface, all the
different Hispanics, Taiwanese, and Anglos at St. Joe seem to get
along with one another, but, as in every high school, there are
cliques. Some of the more assimilated Mexican-American students have
little to do with the Mexican-Americans from el otro lado.
In the view of one person who knows the school and
its students well, the lack of much to do in Brownsville for the
middle-class teen-agers leads to a great deal of early sex. "It is
surprising that, with the Catholic doctrine and the Mexican-American
doctrine, there is so much sex going on, but the parents and the
school refuse to talk about the problems," this person told me. "They
say, ‘That doesn’t happen here, and neither does anorexia, or drug or
alcohol abuse.’ " Some of the Anglo boys at St. Joe who get involved
with the girls from the old-fashioned families have no idea of the
expectations and pressures that are put on the Mexican-American
daughters. In Brownsville, Mexican-American girls are often pushed to
marry as soon as possible after high school.
Joey was often attracted to the more Latina girls
of the school. During his junior year, he asked out Cristina Cisneros,
a sophomore. The other boys were surprised. "I didn’t really know that
much about her," a close friend of Joey’s told me. Cristina, the
youngest of five children, had long curly dark hair and a pretty face
with small features. Although she once tried out for cheerleader, for
the most part she seemed to keep to herself. "In the cafeteria at
lunch," one of her friends told me, "when all of us would be laughing,
Cristina would be very quiet." Another friend saw her differently:
"Cristina could be quiet when you didn’t know her, but when you know
her she’s bouncy, happy, and friendly."
Joey may have appeared to Cristina’s mother, Dora
Cisneros, to be a catch: he was an ambitious student from a good
family, and he wasn’t wild, like many of the St. Joe boys. Cristina
and Joey often played tennis together or swam in his pool. His
stepmother, Connie, thought they were "just friends." Some weekends
when Cristina was at Joey’s house, she would sit by herself playing
video games while Joey did his homework in the dining room. "It was
strange," Connie told me. "I never saw anything remotely intimate
between them. They didn’t even hold hands."
One day, Joey told one of his closest friends that
he and Cristina had gone alone to South Padre Island, to a condo her
parents had there. It is impossible to know exactly what went on there
between Cristina and Joey, but Joey later told his friends that they
had slept together. He didn’t brag about it, his friends told me, and
one friend said that he even seemed to regret it. His friends think
that Joey and Cristina slept together only once or twice, but they
have no doubt that Joey was telling them the truth. Cristina later
denied that anything had happened between them, according to a friend
of hers. In any case, later that spring Joey took Cristina to the
junior prom; a photograph of Joey in his tuxedo was taken.
That June, Joey broke up with Cristina. One of his
closest friends told me that he thought Joey had decided that it had
been just a physical attraction, and that there weren’t many emotional
ties between them. He wanted to get out honorably, without "hurting
her feelings," he told his father. He had given Cristina his ring, and
when he broke up with her he asked for it back, but she refused.
During the first few weeks of the summer, Buddy
told me, Dora Cisneros began to call Joey. She was very polite on the
telephone. "Why have you broken up with Cristina?" she would ask.
Joey, uncomfortable at hearing from Cristina’s mother, was apparently
almost excessively polite, using his Catholic-school manners. "Well,
Ma’am, I think she is very nice," he would say, "but I just want to
see other girls." According to Buddy, Mrs. Cisneros called him
and asked him why Joey had broken up with her daughter. At first,
Buddy remembers, he thought Mrs. Cisneros was just being "a concerned
parent," but when he realized that she was truly concerned about a
high-school romance that had fizzled he could not understand how a
mother could risk humiliating her daughter by calling her boyfriend’s
Joey was angry that Cristina had not returned his
ring, and he decided he would write her a polite but firm letter
asking for it back. To his teen-age mind, the letter had a menacing
legal tone. Buddy, who had seen the letter, recalled that it said, in
effect, "You have ten days to return my ring or I am taking action."
After Joey sent the letter, according to Buddy,
Dora Cisneros called Buddy at home and said, "I want to meet you and
talk to you about Joey’s ring and other things." Buddy agreed to meet
her at a Burger King. When he got to the table, he saw Cristina
sitting there with her mother. An outsider might have thought they had
come to negotiate a marriage, an old-fashioned Mexican custom. Dora
Cisneros again asked, "Why did Joey break up with Cristina?" Buddy
answered, "This is really between Joey and Cristina. It has nothing to
do with us." Buddy expressed the opinion that Joey was old enough to
conduct his own personal affairs, and that, as the father, he had to
stay out of it. Inexplicably to Buddy, as Mrs. Cisneros talked about
her daughter’s private life Cristina did not protest but remained
silent for most of the meeting.
Then Dora Cisneros said to Buddy, "Are you aware
that your son drinks?"
Buddy wasn’t particularly upset. He remembered his
own teen-age years in South Texas. "What eighteen-year-old doesn’t?"
"I’ve seen him drunk once," Cristina said.
"Well," Buddy said, "if Joey has been drunk, he has
never been drunk in front of me."
The meeting, however bizarre, was perfectly
friendly, Buddy recalls. The subject of sex never came up. Buddy told
Mrs. Cisneros that he would talk to Joey about being "a gentleman."
Mrs. Cisneros told Buddy that Joey would get his ring back. "I just
want him to sweat a little bit," she said. When Buddy got home, he
told Joey, "If you are breaking up with Cristina, please be a
gentleman about it. If you have done anything to offend her, please
write her a note or call her to apologize. Tell her you want to be
just friends." No one knows whether Joey took his father’s advice.
But, according to Joey’s friends, Mrs. Cisneros continued to call him.
Joey told a friend that she had offered him five hundred dollars a
month to take Cristina out. Eventually, the situation reached a point
where he later confided to another friend, "I have never told an adult
off before, but, yeah, I told her off."
At the beginning of his senior year, Joey met
Marianela Caballero, a new girl in school. Marianela had long, dark
hair and an infectious laugh. Her mother, who was originally from San
Luis Potosí, spoke Spanish with her daughter, and Marianela had a
Mexican lilt to her voice. Joey invited Marianela to homecoming, but
the relationship did not take off. "I didn’t want a commitment then,"
Marianela told me. But during February their flirtation intensified.
The Saturday before Joey was killed, he attended a
friend’s quinceañera, the traditional coming-out party given
for a Mexican-American girl’s fifteenth birthday, and became confused
that Marianela paid more attention to another boy than to him.
Marianela might have been unsure that Joey really cared for her. Like
many of the more traditional Mexican-American girls, she did not want
the sort of casual romance favored by the Anglo boys. Her mother had
talked to her at great length about "reputation."
On the Monday after the quinceañera, Joey
wrote her a long letter explaining his intentions: "I know how I feel,
and it’s all up to you. You need to let me know. You wanted sincere,
this is how I feel. I like you alot, but it’s all up to you. . . .
Please let me know how you feel. I sincerely care for you."
On Tuesday–the night before he was murdered–Joey
and Marianela were on the telephone for more than three hours. His
friends Patrick Aziz and Erika Borrego were over at his house, as they
often were, ostensibly to study calculus but really just to hang out.
Before Patrick and Erika left, the three friends started kidding
around with Joey’s electric razor. They held Joey down and tried to
shave his legs. At one point during the evening, Joey said that he had
heard that another boy was now taking Cristina Cisneros out. "Good
luck," Joey said.
On another occasion, he told that boy’s cousin,
"Tell him not to worry. If he wants to take Cristina out, that’s
fine." He also startled Patrick and Erika. "Did you know that Mrs.
Cisneros offered me money to take Cristina out?" he asked. "God.
Really, God, what a nut!" Patrick recalled telling him.
Joey was serious. He told them she’d offered him
five hundred dollars a month. All three were casual about this
information; their minds were on other things.
Alex Perez has been the sheriff of Cameron County,
in which Brownsville is situated, for twelve years. Perez, in his
fifties, is husky–what Mexicans on the border call poco
fuerte–with strong muscles beginning to turn soft. He habitually
wears gold aviator glasses, cowboy boots, a gold tie tack in the shape
of handcuffs, and a large gold ring with rhinestones in the shape of a
On March 3rd, the morning that Joey was killed,
Perez was eating breakfast at the Toddle Inn, a small restaurant he
owns on Central Boulevard, not far from the Sheraton. In the
early-morning hours, the Toddle Inn fills with local lawyers and
police seeking to hear the morning courthouse chisme–gossip. It
was, Perez told me, around seven o’clock, when the call came in:
"1900," the code for murder.
Immediately, he rushed to his car and, with sirens
going full blast, headed for Rancho Viejo. There are twenty or so
murders in Brownsville every year, but not many occur in the rich
suburbs. When Perez arrived at the house, he saw Buddy Fischer
standing in the driveway. Perez knew Buddy from when he was a client
of Buddy’s bank. His first thought was that Buddy lived in the area
and must have accidentally happened on the crime.
At the house, police found what eventually turned
out to be a crucial piece of evidence–a yellow business card lying
near Joey’s body. The card was from a bail-bond company in McKinney,
Texas, not far from Dallas. The sheriff later theorized that Joey had
tried to grab his assailant and the card had fallen from his pocket.
On the card, Perez saw, was a handwritten telephone number with a 214
area code, the code for Dallas. "The four was written in a weird
handwriting," he told me. "Very distinct. I was asking myself, ‘Why
would a young man like this, just starting life, a brilliant student,
get shot?’ Usually, it’s either drugs or love."
Perez thought it unlikely that Joey had any
connection to the local drug trade, he told me, and it also seemed
unlikely to him that the murder was a crime of passion. He said that
in Brownsville it is unusual for someone so young to get killed over
love. But Perez had been on the border long enough to know that
anything was possible. He asked the family, "Did Joey ever have any
problems with a girlfriend?" They told him about Cristina.
That morning, Marianela Caballero was interviewed
at the sheriff’s office. "Did Cristina Cisneros ever say words to
"No," Marianela said. She had no idea why
detectives would ask her about Joey’s ex-girlfriend, whom she hardly
Later that day, Cristina appeared at Buddy’s door
to make a condolence call. "What happened?" Cristina asked Connie.
Connie was sharp with her. "What do you know
about what happened? The sheriff wants to talk to you."
At first, the sheriff and the local district
attorney, Luis V. Saenz, did not take the Cisneroses’ connection with
Joey any more seriously than their other leads. "The family told me
about the crazy calls," Perez said later, "but that didn’t mean murder
The sheriff and the district attorney were also
considering the idea that Joey was killed by a drug dealer, who had
mistaken him for someone else. Joey’s stepfather, who worked for a
Chinese-owned shrimp farm in Arroyo City, about forty miles away, had
recently stopped the payment of a check for several hundred thousand
dollars to another shrimping company because of a contract dispute.
Joey’s stepfather immediately assumed that Joey had been murdered out
of revenge. For two days, he was overwrought, weeping uncontrollably,
thinking that he was in some way to blame for his stepson’s death. An
early investigator on the case pushed the Chinese theory and told
Buddy and Corinne that there was the possibility that their other
children were in danger. "For two weeks, I would not let my baby out
of the house," Connie told me. Buddy and Corinne debated sending Eric
and Kathy to San Antonio to stay with their grandparents.
There is no specially trained homicide squad in
Brownsville, and the investigation was rigorously pursued by Sheriff
Perez’s detectives, Ernesto Flores and Abel Perez. They immediately
called McKinney, where the bail-bond company was based, hoping to find
a recent application for bail that had been received from South Texas.
The bond company gave them a man’s name and a Dallas address and faxed
a copy of the man’s bail application. The handwriting had the same
florid "4" that appeared on the yellow card. The detectives
immediately left for McKinney and got a warrant to rescind the man’s
bond. He appeared at the bond company, unsure of what he had done
wrong. He identified the yellow card. When they interviewed him, the
man said that he had given the card to a friend at a motel in downtown
Brownsville; the bail-bond company’s card was a form of insurance if
his friend should get arrested.
The detectives knew that this particular motel was
a haven for the minor border criminals of the area. Perez’s office
began tracking down a few people who had stayed at the motel in the
previous months and who they thought might be connected to the man in
McKinney. Eventually, they came up with a man named Daniel Garza, a
Mexican national who spends a lot of time in Brownsville and San
Antonio, and whose nickname is El Güero (the Fair-Haired One). He told
them he had a landscape business, but the authorities suspected he
might be a small-time drug runner. After being questioned, Garza gave
a statement acknowledging that he had arranged Joey Fischer’s killing.
Police describe Garza as a middleman who was having
family trouble and had gone to a curandera. Border drug dealers
often consult the local curanderas, because they believe that
such witchcraft can make them invisible to the federal authorities.
"These people in the Mexican culture believe too much in the
curanderas," Perez told me. The curandera that Daniel Garza
had sought out for his problems, María Mercedes Martínez, had no
special reputation. None of the other curanderas of Brownsville
had ever heard of her. She was a seventy-two-year-old woman who made a
living by charging five dollars to tirar las barajas
("throw the cards"), an unusual practice for a curandera. She
did not operate in one of the brightly painted yerberías that
advertised special oils and candles; instead, she had a table in a dim
back room of a store where secondhand clothes were sold, named La
Chuparosa (the Hummingbird), downtown. But, according to the sheriff,
Martínez had had a long relationship with Dora Cisneros. Dr.
Cisneros’s former office was on a street a few blocks from La
Chuparosa and perhaps a ten-minute walk from International Boulevard
and the bridge to Mexico.
Although David Cisneros was born in Texas, he had
gone to medical school in Mexico. There is a hierarchy among the
doctors of the Rio Grande Valley which has to do with whether you
attended medical school in the United States or "across." David and
Dora Cisneros had lived in Brownsville for many years; they were
considered well off but not rich. In 1974, their firstborn son, David,
was killed when he was thrown from a vehicle driven by a friend during
his senior year at St. Joe. It was said at the time that Dora Cisneros
got pregnant again to try to overcome her grief at losing her child.
However that may be, when Cristina was born, Dora’s friends called it
In recalling Dora Cisneros, the people I talked
with in Brownsville tended to describe her as "quiet." She usually
wore simple clothes, and she spoke unaccented English; she certainly
didn’t seem to be muy Mexicana. She belonged, a friend told me,
to a mall-walkers’ club–the members took their exercise by strolling
up and down the air-conditioned halls of the Sunrise Mall, across from
the Sheraton. She seemed like the picture of middle-class
According to someone close to the family, Dora was
a member of the Garcia family of Los Indios, a ranching community on
the American side, close to the Rio Grande, near Brownsville. Los
Indios was not a typical middle-class town; someone who grew up in the
area told me that the children of the ranching communities close to
the river were often strongly influenced by Mexican folktales and
superstitions they learned from the braceros who worked on the
ranches. In these communities on the border, Mexican traditions are
maintained, and the belief in curanderismo is often stronger
there than in town. Dora Cisneros spent her childhood in Los Indios
but later moved to Brownsville and attended high school. A woman who
knew the family remembers that the Garcias owned property and could
afford to send Dora and her sister to Villa Maria, a private school,
and their sons to St. Joe. In seeking to explain Dora’s personality,
this woman said that the family had experienced "much tragedy"; Dora’s
uncle is said to have committed suicide, and a brother drowned as a
teen-ager. Mrs. Cisneros was ambitious, and was active in a club of
local doctors’ wives. She seemed to have become imperious: a former
schoolmate told me that she often snubbed her old friends when she ran
into them in town. A few people now maintain that in some way she
"changed" or "flipped out" after David’s death.
According to someone who knew the Cisneros family,
she became more possessive of her other children. Her son Robert
became a dentist, and she often called his office. Someone familiar
with the office told me that once, when Mrs. Cisneros learned that he
was in the middle of performing a root canal, she said, "Well, I don’t
care. He knows he needs to be here." When one of Mrs. Cisneros’s sons
was having problems in school, she went to talk to his teacher. The
teacher told me that Mrs. Cisneros insisted that it was the teacher’s
fault, not her son’s, and that her children could do no wrong. The
teacher was left with the impression that Dora Cisneros was a woman
who should not be crossed.
Mrs. Cisneros also became increasingly religious
after David’s death and, some say, began to visit local curanderas.
But in the atmosphere of Brownsville seeing curanderas isn’t
all that odd–even respected professionals do it. Curanderismo
and brujería have always been powerful elements in the cultural
history of Mexico. Although Catholicism was well established in Mexico
by the end of the eighteenth century, many of the native Mexicans
never truly gave up their ancient beliefs, much to the annoyance of
the local religious powers. A return to folk-based religious practices
occurred during the Mexican Revolution, when the bishops and priests
fled northern Mexico for the safety of South Texas. It was the fusion
between the pagan beliefs and the theology of the Church that Anita
Brenner described in "Idols Behind Altars": the pagan "idols" blended
uneasily with the "altars" of Mexican Catholicism, she wrote. Magic
continues to pervade daily life in Mexico: the marketplaces are filled
with herbs and oils; a popular soap opera in the nineteen-eighties was
"El Maleficio" ("The Evil One"), in which a Oaxaca businessman prayed
nightly to Satan. Even in the high-tech factories in the Matamoros
industrial parks, these superstitions are part of the ordinary
routines of the border. Gary Cartwright, writing in Texas Monthly,
reported that a maquiladora was spared being shut down because
a curandero was able to "de-hex" a piece of machinery with
which a worker had been injured. Pregnant women go to work daily at
the maquiladoras with ribbons holding amulets and talismans,
and milagros, small religious paintings, pinned to their
One morning, I went to talk with Antonio Zavaleta,
the dean of liberal arts at the University of Texas at Brownsville.
Zavaleta has a doctorate in anthropology, and his area of expertise is
the folk medicine and witchcraft of the Mexican border. He is tall and
has a rumpled look; in his office are religious retablos and
baskets of the kinds of oil that the curanderas frequently use.
During the Matamoros cult-killings case, Zavaleta, as the local expert
on palo mayombe, the particular type of black magic employed,
received national attention. At the time, he was also on the
Brownsville city council, and was thinking about running for mayor.
Zavaleta grew up in Brownsville and at his grandparents’ ranch in
northern Mexico, and, like many other Mexican-Americans of the border,
he considers folk medicine and spells part of his culture. "As I got
older," Zavaleta told me, "I became so fascinated by the other side of
Brownsville that I have spent my entire adult life studying it."
In rural Mexico, the curandera is the
practitioner of health care, a respected healer. There are several
types of curanderas, among them those who work "on the material
level," giving massage, and those who work "on the mental level,"
using a form of visualization, like many New Age therapists. A common
treatment of these curanderas is to roll an egg over the body,
then crack the egg into water for some kind of divination. In
Brownsville and Matamoros, there are also curanderas whose
specialty is trabajos, works of "white magic and black magic."
By Zavaleta’s definition, anyone who is doing trabajos is
practicing brujería. Clients seek out these curanderas
to affect a relationship–to bring about love, to end a marriage, to
attract a husband or a boyfriend, or to harm someone. "There’s a
general theme, but individual practitioners develop individual style,"
Zavaleta said. "If they are trying to harm someone, they use a
combination of rituals. Usually, they will use a doll made of wax or
rags. They may get hair, an eyelash, or clothing. Then, through a
series of incantations, they try to encapsule that, along with a
picture of the person, in a clay jar or some other kind of vessel. The
concept of a knot is very common. So is the process of tying and
enclosing their spells." Zavaleta’s research has taken him to
Catemaco, in southeastern Mexico, where the great witches are based,
and into the dim yerberías of Matamoros to observe the lesbian
channellers of Pancho Villa. Ever since the Matamoros cult killings,
Zavaleta told me, he will not cross the border without wearing a cross
around his neck.
Police investigating Joey’s death speculate that
the curandera, as Martínez is now known in Brownsville, made a
deal with Daniel Garza when he came to see her about his family
trouble. She said, according to a source close to the D.A.’s office,
that she would help him if he took care of someone for her. Garza,
according to the subsequent indictment, hired two men named Israel
Bazaldua Cepeda and Heriberto Puentes Pizana. The indictment goes on
to say that Garza gave Bazaldua Cepeda and Puentes Pizana the prom
photograph of Joey so they would make no mistake about their target.
There are conflicting reports of how much they were allegedly paid; it
could have been as much as four thousand dollars.
On April 5th, a month after Joey was killed, the
sheriff’s office arrested Martínez at her house, a small pink building
in a barrio near downtown Brownsville. At La Chuparosa, detectives
confiscated candles, tarot cards, and oils in the tiny room behind the
shop containing racks of used clothes. Reportedly, the sheriff’s
office found a piece of paper bearing the name "Cristina Cisneros."
Almost immediately, Martínez, who had no prior police record, told the
detectives that she had a relationship with Dora Cisneros. At
seven-thirty the next morning, according to a source in the D.A.’s
office, Martínez, wearing a wire provided by the sheriff’s office, met
Dora Cisneros. When Cisneros handed Martínez five hundred dollars in
cash, the sheriff of Cameron County moved in and arrested Cisneros for
capital murder, a charge that carries the possibility of life
imprisonment or death by lethal injection. Martínez was also charged
with capital murder.
When news reports about the arrests of Dora
Cisneros and María Mercedes Martínez first went out in Brownsville,
Buddy was in the warehouse at kemet. A close friend had called Connie,
and Connie immediately went out to tell Buddy. Some time before, Buddy
had decided that he would not bother the D.A. or the sheriff. He had
referred to the process of finding Joey’s killer as a "roller coaster"
and had said that it would upset him too much when there were
slowdowns in the investigation.
In the weeks before her mother was arrested,
friends of Cristina Cisneros said she was having a hard time handling
Joey’s death and seemed very distressed. Once, seeing Marianela in a
school hallway, she hugged her. Although Cristina had started dating
the other boy, a friend of hers later told me that whenever anyone
mentioned Joey’s name she "started crying," and often brought out
pictures of him.
On the morning Joey was killed, Dora Cisneros had
gone to St. Joe to take Cristina home. According to a teacher, the
assistant principal said to Mrs. Cisneros, "You, of all people, should
know how a mother feels." The assistant principal meant the comment to
refer sympathetically to the death of her son David, but Mrs. Cisneros
just "stared and stared," the teacher told me. The assistant principal
thought Mrs. Cisneros had misunderstood what she’d said, and added,
"You lost a son, remember?" After learning about the charges against
Mrs. Cisneros, the teacher said, the assistant principal was horrified
that she had said that to her.
On the morning that Cristina’s mother was arrested,
Dr. Cisneros called the school and asked that Cristina be brought into
the guidance office, so that local reporters would not swarm around
her. Several of the teachers were concerned about how Cristina would
now be treated by the other students. Since Joey’s death, the grief
counselling at the school had been intense. Several of Joey’s friends
who were in Mrs. Johnson’s English class discussed "Murder in the
Cathedral" and Eliot’s observation that death could come in a thousand
different ways. It did not surprise Mrs. Johnson that none of the
students mentioned García Márquez’s observation on Santiago Nasar’s
death–"There had never been a death more foretold"–for the sexual
taboos implicit in García Márquez’s chronicle had never seemed to
apply to the middle-class teen-age world of St. Joseph Academy.
At St. Joe, there was a great deal of gossip about
Mrs. Cisneros. It was quickly recalled that Dora Cisneros’s other
daughter had had a boyfriend who had broken up with her. Soon
afterward, it was rumored, someone stopped his car and stabbed him
repeatedly, but he survived. Although Sheriff Perez traced the
boyfriend to a distant city, he could not prove that the rumors were
true. Some teachers at St. Joe who had known nothing about brujería
accepted as fact the theory that Cristina and Joey had slept together
and that the curandera had promised Mrs. Cisneros that if Joey
was murdered Cristina would get her virginity back.
On April 6th, the Herald ran the story of
the the arrests of Dora Cisneros and María Martínez at the top of the
front page. That day, a woman dumped a bulky brown paper shopping bag
into a resaca near downtown Brownsville. As luck would have it,
park employees were working on the grounds nearby, and noticed the
woman dumping the bag and then hurrying away. They went over and took
the bag out of the water, moving so quickly that the paper was hardly
The bag’s contents frightened them: a full
collection of the paraphernalia of brujería required for the
most evil of spells, illness and death. There was a garland consisting
of three heads of garlic with pins stuck in them and wrapped in yellow
cloth; a vial of Embrujo de Sevilla perfume; horseshoes wrapped
with red ribbons; an aloe-vera plant, also wrapped in ribbons; two
doll-size figures that looked like miniature corpses made of black wax
and covered with many pins; and a deck of Mexican tarot cards. The
park workers reported the discovery to the Brownsville police, and the
police called Antonio Zavaleta.
By now, almost everyone in South Texas knows that
Zavaleta is the person to call about anything having to do with
brujería and the local curanderas. Zavaleta photographed
and documented all the items in the bag. Whoever its owner may have
been, this was "very secret stuff," Zavaleta told me. "A practitioner
would not have kept these sorts of things in her shop. She wouldn’t
have it out for people to see. The pins are there, of course, to
inflict pain. The aloe-vera plant wrapped with the ribbon would
represent the person asking for the trabajo." Although Zavaleta
emphasized that, despite the "amazing coincidence," there was no
evidence linking the bag to María Mercedes Martínez, the tarot cards
made him wonder, since she was one of the few curanderas who
After less than a week in Brownsville, I learned to
walk in and out of offices without bothering to make appointments; the
telephone and standard office procedures clearly meant little on the
border. Sheriff Perez could often be found at the Toddle Inn. District
Attorney Saenz was either at his office or in one of the many
courtrooms of Brownsville’s modern limestone courthouse; local
jurisprudence appeared to depend almost exclusively on his
Saenz is a former Brownsville school-teacher who
decided at the age of twenty-nine to go to law school. He now has the
cautious mien of a man who is always thinking about the possibility
that his convictions might be reversed by a higher court. Although the
sheriff’s office arrested Dora Cisneros on April 6th and it was the
middle of June when I arrived in Brownsville, Saenz had yet to present
the case to the grand jury of Cameron County. Saenz has been told
repeatedly that this case could make his career or ruin it. As
reporters have telephoned him from around the state, he has burrowed
in, refusing to return most calls. Some local reporters faulted Saenz
for his slowness in seeking an indictment, but his seeming inactivity
has camouflaged an obsession with the case. He told me, "I’d rather
delay the indictment six months than be forced to trial with a sloppy
For Saenz to obtain convictions on capital-murder
charges, he will have to successfully navigate the state’s
accomplice-testimony rule. In Texas, a conviction cannot be sustained
with only the testimony of an accomplice. Saenz explained to me, "If A
gets on the stand and implicates B, we, the state, must corroborate
the evidence." Prosecutors would need to be able to tie the defendant
to the crime with other evidence.
In the view of Rey Cantu, a former district
attorney of Cameron County, prosecuting Dora Cisneros and María
Mercedes Martínez will be a challenge for Luis Saenz. Cantu was the
prosecutor in a similar case in Brownsville, in which a well-known
doctor, Victor Leal, was accused of hiring a killer to murder his
brother-in-law, an elderly landowner, with whom he was having a
property dispute. Just before they were to go to court to settle the
land matters, the brother-in-law was murdered. "So we tracked it down,
and it took us two years," Cantu said. "We caught the shooter and we
caught the finger man and we caught the driver. The driver flipped,
and gave us the shooter and the finger man. Then we went to trial on
the shooter. He flipped, and then we went to trial on Leal, who’s a
doctor and very generous and a very prominent member of the community.
He was convicted, and then the conviction was on appeal for five
years. It was affirmed by the Court of Appeals, but the Court of
Criminal Appeals, the state’s highest court, reversed it, because of
Cantu, however, is optimistic about Saenz’s
potential for success with the Fischer case. Besides the testimony of
Martínez, Saenz has Daniel Garza’s "possession of knowledge"–the
knowledge being that Joey had worn a tuxedo in the photograph. "He
knows something, and the only way he would have known that is from the
conduit, but it had to have come through one of the Cisneroses," Cantu
says. "It is crucial evidence in front of the jury. Who the hell is
going to have a picture of this kid in a prom outfit? And, of course,
we have the tape. It is enough."
In the pathology of criminal cases, there is often
behavior that is inexplicable. Still, several questions occurred to me
about the strength of the D.A.’s case as I talked with Luis Saenz. Why
would Martínez enter into a conspiracy for murder? And, if she did,
what debt was she paying off to Dora Cisneros? Was it a question of
money? Will Martínez testify that Dora Cisneros somehow suspected that
her daughter was no longer a virgin? Saenz, who is the father of a
teen-age son, believes that "if they had sex the fact that they had
sex is within the range of normal teen-age behavior."
However repressive the culture, nothing justifies a
murder–except, possibly, self-defense. "There are shootings in
Brownsville every day of the week," Saenz went on. "But this one is so
senseless. You go full circle with this thing and you keep coming back
to the same fact: This killing is sick. Pointless. Such a waste. I am
obsessed with this case. Buddy is my neighbor. You know, I can’t get
over how controlled Buddy and Corinne are when they come into this
office. If it were my teen-age son, I would be hysterical. I don’t
mean to sound racist, but what is it with you gringos? How can you be
so calm over the death of a child?"
In late July, a week before Saenz finally obtained
the indictments of Dora Cisneros, María Mercedes Martínez ("a/k/a
la curandera," the original indictment noted), and Daniel Garza ("el
güero"), authorities in Mexico detained one of the alleged hit
men, Israel Bazaldua Cepeda, for questioning on a separate homicide
charge. Bazaldua Cepeda can’t have been surprised by the appearance of
the Mexican police; he was reportedly carrying an amparo, a
restraining order signed by a Mexican federal judge. An amparo
is a guarantee of protection of civil rights. Although the case has
been widely publicized, the Matamoros police released Bazaldua Cepeda
before he could be questioned by the sheriff’s office. "It’s
Brownsville" was the explanation I was given for how Bazaldua Cepeda
could have eluded the D.A.
Extradition of Mexican citizens is a difficult if
not virtually impossible process. Mexico operates under a form of
Roman law: if a Mexican citizen commits a capital offense in another
country he can be tried only in a Mexican court. (Mexico does not
allow capital punishment.) I was surprised when Oscar Ponce, the lead
prosecutor on the Fischer case, told me that the sealed indictment for
the hit men was for capital murder, a fact that made their extradition
impossible. "That’s part of our charging strategy," he told me. Even
if he had indicted the hit men on a lesser charge, he said, he doubted
that the Mexican government would have released them. Additionally,
the prosecutor didn’t want to weaken the case against Cisneros and the
others. "The extradition process is an incredible scandal," David
Berg, a prominent Houston trial lawyer, says. "I don’t know of a
single instance in which the Mexican government has extradited a
Mexican citizen for a major crime committed in the United States."
Despite the growing number of connections between
the two countries brought about by the maquiladoras and by
nafta, the Mexican government hasn’t changed its practices. On the
border, most extradition requests have to do with drug crimes, and the
local dealers efficiently pay off the politicians in the neighboring
state of Tamaulipas. (In one famous case, a Drug Enforcement
Administration agent pulled a suspect through a hole in a fence on the
border to prosecute him.) Joey’s murder is an exception for the
border: no drugs are involved, and his family has influence in the
area. On the face of it, nothing should have prevented the Mexican
government from giving up Bazaldua Cepeda and Puentes Pizana, the
other hit man, on a lesser charge. "We cannot go over and kidnap
them," Alex Perez told me. "But, sooner or later, they will cross the
border, and then we’ll get them."
There was some surprise in the area when Dora
Cisneros engaged J. A. (Tony) Canales to represent her. Canales, a
former United States Attorney for the Southern District of Texas, has
made a big reputation in South Texas by representing the area drug
dealers. As a trial lawyer, Canales, according to Rey Cantu, "is not
your usual flash-bang criminal-defense lawyer." He is the son of a
prominent South Texas family of judges and lawyers; his mother is a
doctor. He prides himself on his understanding of the arcana of Texas
Canales’s strategy will probably be to rely on the
potential difficulty of proving capital murder given the state’s
accomplice-testimony rule. Several weeks ago, all three defendants
pleaded not guilty, but Canales has to be concerned about the amount
of evidence that Saenz has: the statements that María Martínez, the
curandera, and Daniel Garza, the middleman, have given to the
sheriff’s department, including a statement by Garza that he was given
Joey’s prom photograph by the curandera; the wire; and
statements to the D.A.’s office by Joey’s friends about Joey and
Cristina’s putative sexual adventure. Saenz is expected to attempt to
prove that Dora Cisneros’s motive for having Joey murdered was that he
had told his friends of that adventure. The conflict over the ring may
play a role as well.
One afternoon, I drove to the Cisneros home, a
brick ranch house. The neighborhood was quiet, middle-class, and
respectable, but not quite as affluent as Rancho Viejo. Across the
street, some children were playing basketball in a driveway. I walked
up the sidewalk and rang the bell. I was surprised to hear laughter
inside, as if a family gathering were going on. Dora Cisneros came to
the door, smiling. She was shorter than I had expected and rather
frail. She had dark hair cut so that thick bangs framed her face. When
I told her I was a reporter, she said, "Call my lawyer," and shut the
door. There was no particular hostility in her tone; she sounded
There aren’t many people in Brownsville who are
willing to discuss the possibility that Dora Cisneros might be
innocent–even though she might be.
Canales has declined to comment, but the Cisneros
family lawyer and co-counsel, A. C. Nelson, told the Dallas Morning
News, "This whole thing is illogical. This is a very traditional
woman who built her life around her husband, her kids and her family.
This has devastated her. I’ve known Dora Cisneros for more than twenty
years, and she would never even dream of doing the things they say she
did. . . . There was no animosity toward Joey. It was traumatic for
the entire family when Joey died. They grieved for him. Nothing about
these charges makes sense." Nelson told the Houston Chronicle,
"I can’t help but think it was a case of mistaken identity." He said
that Dora Cisneros and Martínez knew each other only because Dora was
in the habit of giving used clothes to Martínez. "My client has known
this woman for fifteen years. As far as I know, she never read any
cards for my client. What the woman had was a business where she sold
old and used clothes." Since he gave these interviews, Nelson has
stopped talking to the press.
"I think public opinion in Brownsville has
crucified her already," a local priest told me. Dora Cisneros has been
seen eating with her family at Luby’s cafeteria in the Sunrise Mall.
When they appeared, no one greeted them. One woman told me, "There was
a conscious effort made not to look in their direction."
Cristina left St. Joe in the late spring.
Apparently, she entered another school under an assumed name. "But
everyone knew exactly who she was," one student told me. She appears
to have become a pariah in Brownsville. It seems clear that both Joey
and Cristina are victims.
After I left the Cisneros house, I drove down to
Eleventh Street, where the curandera had her store. The scale
of Brownsville is such that it is possible to drive from one point to
almost any other in ten minutes or so; Cristina’s house is ten minutes
from Joey’s house, north of the city; the Mexican part of town, close
to the border, is ten minutes farther south of Joey’s house, but it is
a part of town where the cultures haven’t melded. On Eleventh Street,
the curandera’s tiny shop was now chained shut, but next
door was the Yerbería Indio Azteca, a storefront filled with the
candles, oils, and herbs used by the curanderas. I bought two
candles–Pancho Villa votives, which the text written on the glass
promised would bring me "strength and luck."
The shop was dusty, and was filled with memorabilia
such as a portrait of Robert Kennedy that was at least twenty-five
years old, and pictures of many Mexican children–the grandchildren of
the woman at the register. At first, she appeared not to understand my
Spanish, but after a while she grew more comfortable with me. When I
asked her about the curandera, she hugged herself dramatically
and said, "It gives me the chills when I read about it." She told me
that the curandera "is deeply religious," always asking about
the children whose pictures are all over the shop. Then she said, "I
don’t really know her." Later, I was told that the curandera
had for years bought her supplies from the Yerbería Indio Azteca.
In South Texas, I was haunted by a remark my Aunt
Anita once made: "Being an American brought up in Mexico gives one an
obsession to try to reconcile two ways of life, two almost opposed
points of view, two sets of emotions and interests. . . . It seems to
me that if enough Americans know the story, the conflict would resolve
on a plane of human friendliness and decency." I wondered how Anita,
long dead, would have interpreted Joey’s murder. Although the border
towns have several generations of Mexican-Americans that seem
assimilated–particularly the children–the contradiction of the society
is that vestiges of the traditional shibboleths and the prejudices of
both cultures remain. A private-school girl like Cristina may have
seemed so assimilated that Joey, a normal American teen-age boy, had
no reason to suspect that her family’s values may have differed in any
way from his. If Joey had "known the story," as my Aunt Anita put it,
would he be alive today?
In brochures distributed to families of murdered
children, it is stated that the actual life of the dead child can be
lost in the complexities of the legal process. The implication is that
a son or a daughter who has been murdered becomes a noun, "the
victim," a phantom who begins to exist only as a name in the pages of
an indictment or in the memory of family and friends, in
black-and-white photographs in high-school yearbooks, in hasty letters
written home. New occupations have arisen to protect the rights of
murdered children. So many are killed each year that there are now
"victimologists," "victim advocates," and "victim support groups" who
will appear to "court-watch"; that is, to pack a courtroom, to remind
a jury that the victim was once a person, surrounded by friends and
family who could not imagine that they would ever have to get through
their life without him.
The families of these children do not grieve in the
predictable stages outlined by Elisabeth Kübler-Ross in "On Death and
Dying." A homicide leaves too many unanswered questions. Parents will
torture themselves: What should we have seen that we didn’t see? For
months after Joey was killed, Buddy asked himself, "If I had known
that Dora Cisneros was such a possessive mother, would I have stopped
Joey from seeing Cristina?" Anne Seymour, a spokeswoman of the
National Victim Center, in Arlington, told me, "I don’t use
Kübler-Ross’s word ‘acceptance’ when I counsel families of murdered
children. There is never ‘acceptance’ when a child is killed."
Seymour, whose organization tries to change laws and attitudes about
all victims, campaigns against "the societal bias against murder
victims." In many violent deaths, people blame the victim. "Friends
will think, and may even say out loud, ‘Didn’t you know something like
this would happen? Why didn’t you see this?’ The intensity of the
sorrow and the frustration over the child’s death is so acute that
parents do not get over this kind of grief."
On my last night in Brownsville, Connie, Buddy, and
I debated going to see "Like Water for Chocolate," a Mexican movie
about thwarted love and magic spells that takes place during the
Mexican Revolution. I was curious about it because of our family
history. Buddy, understandably, was not interested in our family
Instead, he wanted to show me a video that Corinne
had just been given by a relative, who had discovered footage of Joey
at around eight years old playing with his grandfather and then, last
spring, reading the Scriptures at his aunt’s wedding. Connie and I sat
on the sofa as Buddy calmly inserted the video in the VCR. Suddenly,
Joey appeared, smiling and sitting on his grandfather’s lap. His
grandfather obviously had a way with children; Joey could hardly stop
laughing. "What did the oil say to the vinegar?" Louis Lapeyre asked
his grandson. "Close the door, I am dressing!" Then Joey yelled into
the camera. Kathy and Eric and Joey sang a song with their
grandfather: "If you get to Heaven before I do, just bore a hole and
pull me through!" They let out the famous Texas rebel yell–"Yay-hah!"
Buddy was stoic watching his child, but Connie cried. The video became
scratchy for a moment and filled with static. Buddy got up to fix it.
"I want to see Joey at the wedding taken last spring."
He played with the tracking on the VCR, and
suddenly Joey, a handsome teen-ager, was standing at a podium. The
sunlight streamed through the stained-glass windows in the church and
made it difficult for me to see Joey clearly. His voice was
commanding: "I want to show you the way. . . . Without love it would
do me no good. Love is always patient and kind. It is never jealous.
Love is never boastful or conceited. It is never rude or selfish."
Buddy tried to bring the picture into better focus, but Joey faded in
United States Court of Appeals
For the Fifth Circuit
United States v. Cisneros
UNITED STATES of America, Plaintiff-Appellee,
Dora Garcia CISNEROS, Defendant-Appellant.
October 28, 1999
Before POLITZ, JOLLY and DUHÉ, Circuit Judges.
James Lee Turner (argued), Paula Camille
Offenhauser, Assistant U.S. Attorney, Houston, TX, for
Plaintiff-Appellee.David L. Botsford (argued), Austin, TX, J.A.
Canales, Jo Ellen Hewins, Canales & Simonson, Corpus Christi, TX, for
Joey Fischer, a high school student, was murdered
in cold blood by a hired killer-a killer hired by the mother of an
Fischer and Christina Cisneros (“Christina”), were
in high school in Brownsville, a Texas border town. They began
dating in the spring of 1992. But Fischer ended the courtship after
only several weeks to the bitter disappointment of the Cisneros
Dora Cisneros (“Cisneros”), Christina's mother,
first tried to persuade Fischer to change his mind. Fischer was not
interested. When this did not work, Cisneros went to a fortune
teller named Maria Martinez to find out whether Fischer was destined
to marry Christina. The tarot cards did not hold the answer she
wanted, so Cisneros told Martinez to put a curse on the young man.
Near the end of October, Cisneros turned to a more
mundane solution: she asked Martinez to find someone to beat up
Fischer. By winter, Cisneros had decided to have him murdered
Now enter Daniel Garza. Garza had also been
unlucky at love. He and his wife separated in the spring of 1992.
Soon afterwards, he came to Martinez, asking what he might do to
rekindle the fire of romance with his wife. During one of their
meetings in October 1992, Martinez's thoughts reverted to the lost
romance of the scorned Christina. She asked Garza about finding
someone to rough up Fischer. In late January or early February,
however, Martinez upped the ante with Garza: she relayed that “the
client” wanted the boy killed.
Though Garza assured Martinez that he would find
someone for the job, he was more immediately concerned with
rejuvenating his own fast-fading love life. In the ensuing weeks, he
frequently called Martinez to discuss schemes to get his wife to
return. In the meantime, however, Martinez, was under almost daily
pressure from Cisneros for news on the planned retribution against
Fischer. Feeling the pressure, Martinez would interrupt Garza during
their conversations to find out if he had found someone to kill
Fischer. Garza lied several times and said he had found someone to
commit the crime. The two would then discuss the murder before
returning to the subject of a plan to plant the stirrings of love in
the heart of Garza's wife.
There is an important-a highly important-question
about where Garza placed these calls. At trial, he testified that he
made at least four calls from two Mexican towns, San Fernando and
Matamoros. He said that he had placed them in “casetas,” booths
where a caller pays for the call after making it. During
cross-examination, however, defense counsel asked him why an FBI
report from his interview with an agent said that he had made the
calls collect. Garza testified that the agent was mistaken. Garza
went on to explain that collect calls from Mexico were difficult,
though he may have made one of them to Martinez. In its
case-in-chief, the defense tried to show that no calls were made from
Mexico. FBI Agent David Church was called as a defense witness. He
testified that while Garza had told him that all the calls were
collect, Martinez's phone records did not show any such calls.
In early February 1993, Garza found the men to kill
Fischer: Israel Olivarez and Heriberto “Eddie” Pizana. He met them
in Brownsville, at the home of Olivarez's uncle. Like Garza, they
worked for Rudy Cuellar in a drug smuggling and auto theft operation
stretching from Mexico to Chicago. Olivarez and Pizana were car
thieves and hit men for the organization. Garza met with the two
again in Dallas on February 14 to explain what he wanted. Olivarez
said that they would commit the crime the next time they were in
Brownsville. Garza gave them a photo of Fischer and a map to his
On the afternoon of March 2, Garza was returning
from San Fernando, Mexico, to San Antonio, Texas. He stopped at the
La Quinta Inn in Brownsville, where he happened to find Olivarez.
Olivarez told him that “he was ready to do the job.”
We now turn to a development of uncertain
connection to the hired killers, but one that we must mention. At
6:39 that evening, a car crossed into the United States from Mexico at
the Brownsville point of entry. Border authorities recorded its
Mexican license plate number as “821 THE7.” A vehicle with that plate
had crossed the border eighteen times between August 1992 and March
1993. At 8:26 p.m., Pizana and Ramon Palomares, another Cuellar hit
man, checked into the La Quinta Inn. The receptionist registered their
car as a white Grand Marquis with Mexican plates. Her handwriting
made it hard to decipher whether the plate number was “821 TWEX” or
We now come to the implementation of this insane
and tragic scheme. A little after 7:00 a.m. on March 3, Fischer was
shot and killed in his driveway. The physical evidence consisted of
a bail bondsman's business card found next to the body and a tennis
shoeprint on the outside air conditioning unit. The only other clue
to the killer's identity was a witness who remembered passing a
four-door white car with Mexican plates driving in the vicinity of
Fischer's house near the time of the murder. The witness described
the man in the car as Hispanic, twenty-three to twenty-five years old,
with a short beard.
Then the conspirators spread the news that the deed
was done. Between 7:00 and 8:00 the morning of the murder, Olivarez
called Garza to tell him that Fischer was dead. Garza immediately
relayed this news to Martinez, who said that she could not get the
money from her client without proof of the murder. Garza then
discussed the situation with Olivarez at the La Quinta Inn. Pizana was
also in the room, but not Palomares. After the discussion, Pizana
and Garza visited Martinez, who gave them the money. When the two
returned to the La Quinta, Garza tried to give Pizana the money, but
he declined and told Garza to give it directly to Olivarez. Garza
did that and noticed before leaving that Olivarez and Pizana had two
white vehicles: a white pickup truck with a black stripe and a white
Fortunately, the bondsman's business card had
handwriting on the back, and it matched Cuellar's handwritten bond
application. They also began pursuing information on Cuellar's
associates, Pizana, Olivarez, and Ramiro Moya. They learned about
Garza through Moya, Garza's brother.
Garza became the key that opened the gate through
which other conspirators were herded. He agreed to set up a meeting
with Martinez and to wear a wire. He called her twice to tell her
that the gunmen wanted more money, and each time she gave it to him.
The police then arrested Martinez and had her wear a wire for a
meeting with Cisneros. They arrested Cisneros in her car as she was
giving Martinez $500.
At trial, testimony by a person working for
Cuellar, Victor Moreno, helped establish the link between Cuellar and
the murder. Moreno testified that he heard about the Fischer murder
within the Cuellar organization. He had also been with Cuellar when
Palomares phoned Cuellar to report the murder of “a boy” in
Cisneros and her accomplices were convicted in
state court for capital murder. The Texas appellate court overturned
the conviction, however, for insufficiency of evidence linking her to
the murder. The state then turned the case over to federal
prosecutors, who charged Cisneros under the federal murder-for-hire
statute, 18 U.S.C. § 1958. She was convicted in May 1998. The
district court then denied her motion for judgment notwithstanding the
verdict and for a new trial. Cisneros has now appealed, citing seven
different instances of insufficient evidence and error.
The first, and most complex, issue that this case
presents is whether there is sufficient evidence to show that Cisneros
met the interstate/foreign commerce requirement for a federal
murder-for-hire conviction. In 1993,1
the relevant parts of the statute read:
(a) Whoever travels in or causes another (including
the intended victim) to travel in interstate or foreign commerce, or
uses or causes another (including the intended victim) to use the mail
or any facility in interstate or foreign commerce, with intent that a
murder be committed in violation of the laws of any State or the
United States as consideration for the receipt of, or as consideration
for a promise or agreement to pay, anything of pecuniary value, shall
be fined not more than $10,000 or imprisoned for not more than ten
years, or both; and if personal injury results, shall be fined not
more than $20,000 and imprisoned for not more than twenty years, or
both; and if death results, shall be subject to imprisonment for any
term of years or for life, or shall be fined not more than $50,000, or
(b) As used in this section and section 1959 ․
(2) “facility of interstate commerce ” includes
means of transportation and communication.
18 U.S.C. § 1958 (emphasis added). The government
asserts that it proved this interstate/foreign commerce requirement in
two ways, either of which was sufficient. First, Garza's phone calls
from Mexico to Martinez in Brownsville qualify as use of a “facility
in interstate or foreign commerce” caused by Cisneros. Second, the
matching license plate numbers from the vehicle that crossed into the
United States from Mexico and was later registered at the La Quinta
Inn to Pizana and Palomares, combined with the sighting of a white
vehicle near the scene of the crime, demonstrates that Cisneros caused
another to travel in foreign commerce.
To determine whether the government presented
evidence sufficient to satisfy this element, we first need to
determine what the statute requires. Section (a), in setting out the
crime, uses the term “facility in interstate or foreign commerce.”
Section (b), however, confusingly defines “facility of interstate
commerce” for sections 1958 and 1959 and includes “means of
transportation and communication” in that definition. 18 U.S.C.
§ 1958. Since neither section uses the term “facility of interstate
commerce,” the question is whether the broad definition in (b) should
apply to “facility in interstate or foreign commerce” in (a).2
This distinction is important.3
In this context, “of” means “[b]elonging or connected to,” while “in”
means “[d]uring the act or process of.” Webster's II New College
Dictionary 557, 759 (Houghton Mifflin Co.1995). Under the term in
(a), the use of the facility must have been in the process of
interstate or foreign commerce. That would require us to undertake a
fact-intensive inquiry to establish the interstate or foreign
character of the instant use. If the definition in (b) applies,
however, the statute would encompass even intrastate use of telephones
or vehicles, since those are items connected to interstate commerce.4
Both theories that the government presented to show how Cisneros's
murder-for-hire satisfied the foreign commerce requirement, therefore,
would easily qualify under the statute. Cisneros's plan obviously
caused people to use both telephones and automobiles.
We begin statutory construction with an examination
of the statute's language. United States v. Alvarez-Sanchez, 511 U.S.
350, 356, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994). There are two
parts to 18 U.S.C. § 1958, the substantive portion setting out the
criminal act, (a); and (b), the portion providing definitions for the
terms used in (a). Oddly, part (b) defines a term that is not found
in subpart (a). Reading the statute literally, almost
mathematically, we would disregard the “irrelevant” definition and
apply the substantive portion, (a), alone.
But this rigid approach glosses over the ambiguity
that does exist, the seemingly superfluous definition. The canons of
construction do not help. We recognize that in reading a statute,
every word should be given significance. United States v. Nordic
Village, Inc., 503 U.S. 30, 36, 112 S.Ct. 1011, 117 L.Ed.2d 181
(1992). But this gets us nowhere. The canon obviously counsels
against ignoring the definition in (b). If we use (b)'s broad
definition to interpret “facility in interstate commerce,” however,
then the portion of (a) dealing with interstate and foreign travel
would be rendered superfluous. Use of a “means of transportation”
would cover any type of travel as well. The application of this
canon, therefore, does not resolve our statutory quandary.
Another potential guide for us is case law
interpreting the Travel Act, 18 U.S.C. § 1952. We have previously
held that reviewing section 1958 in the light of section 1952 is
appropriate, since section 1958 follows section 1952's format and was
intended as its supplement. United States v. Edelman, 873 F.2d 791,
794 (5th Cir.1989). It is, therefore, potentially relevant that our
circuit construed the Travel Act to include intrastate mailing. See
United States v. Heacock, 31 F.3d 249, 254-55 (5th
Cir.1994)(construing the Travel Act to include intrastate mailing).
We conclude, however, that our interpretation of
the Travel Act in Heacock is inapplicable here. Heacock concerned an
interpretation of the Travel Act as it read in 1988. At that time,
the relevant portion read: “Whoever ․ uses any facility in interstate
or foreign commerce, including the mail.” Id. at 254.
A circuit split had developed between the Sixth and
Second Circuits concerning whether purely intrastate use of the mails
qualified under this portion of the statute. See United States v.
Barry, 888 F.2d 1092, 1095 (6th Cir.1989)(requiring interstate use of
mail); United States v. Riccardelli, 794 F.2d 829, 831-33 (2d
Cir.1986)(intrastate use of the mail would qualify). The Sixth
Circuit had held in Barry that the statute applied to facilities,
including the mail, that were being used in interstate or foreign
commerce. Barry, 888 F.2d at 1095. Thus, intrastate use of the
mail would not fall within the statute's domain. In Riccardelli, on
the other hand, the Second Circuit had held that “mail” in “including
the mail” referred to the entire preceding clause, “facilit[ies] in
interstate or foreign commerce.” In other words, according to that
court, the statute made clear that the mail was to be treated as
distinct from all other facilities; that is, as a facility inherently
“in interstate or foreign commerce.”
The Second Circuit's treatment of the mails as
distinct from all other facilities under the Travel Act was based on a
thorough analysis of the statute and the history of the postal
service. As the court explained, the U.S. Constitution specifically
granted Congress the power to establish the postal service. U.S.
Const. art. I § 8 cl. 7. From the presidency of James Monroe until
the 1970 reorganization under President Nixon, the postal service was
its own executive department, after which it became a government-owned
corporation. Riccardelli, 794 F.2d at 831.
In Heacock, we examined this split and sided with
the Second Circuit. The special character of the mail automatically
made it a “facility in interstate commerce.” Heacock, 31 F.3d at 255.
In 1990, Congress amended the Travel Act in a
manner consistent with this interpretation. The heading to the
relevant section read “CLARIFICATION OF APPLICABILITY OF 18 U.S.C.1952
TO ALL MAILINGS IN FURTHERANCE OF UNLAWFUL ACTIVITY.” Act of Nov.
29, 1990, Pub.L. No. 101-647, § 1604, 1990 U.S.C.C.A.N. (104 Stat.
4843)(to be codified at 18 U.S.C. § 1952). The new language read:
“Whoever ․ uses the mail or any facility in interstate or foreign
commerce.” 18 U.S.C. § 1952 (emphasis added). This was the version
of the Travel Act that the federal murder-for-hire statute was to
supplement and from which the drafters of 18 U.S.C. § 1958 drew their
Thus, it is clear that our Heacock analysis is
limited to use of the mail, especially after Congress' 1990 amendment,
because the mail is unique. It is plainly and unmistakenly treated
separately from all other “facilities.”
Ultimately, Heacock and other cases interpreting
the Travel Act are not helpful to our inquiry because they do not face
the same contradictory statutory language that we do today in the
murder-for-hire statute. In construing the Travel Act, one need not
wrestle with the distinctions and differing implications between “of”
and “in.” But we cannot avoid confronting them. Each term leads to
a different result; the telephone used in making an in-state call is
not one actually engaged in interstate or foreign commerce with
respect to the particular use at issue, even though the telephone is
itself a facility of interstate or foreign commerce.
We next turn to the legislative history of 18
U.S.C. § 1958, which finally provides some helpful guidance. The
Senate Judiciary Committee's report on the bill supports a narrow
reading of the statute in the interest of comity:
The committee is aware of the concerns of local
prosecutors with respect to the creation of concurrent federal
jurisdiction in an area, namely murder cases, which has heretofore
been the almost exclusive responsibility of state and local
authorities․ This does not mean, nor does the committee intend, that
all or even most such offenses should become matters of federal
S.Rep. No. 225, 98th Cong., 1st Sess.1983, 1984
U.S.C.C.A.N. 3182, 3484.
This legislative history plainly suggests that we
should eschew the broader reading of the statute. Using the
definition in (b) to interpret “facility in interstate commerce” would
extend the reach of the federal murder-for-hire statute to new realms
of traditionally-exclusive state jurisdiction. It is difficult to
imagine a murder-for-hire scheme that would not involve the use of a
telephone or an automobile. This definition, therefore, would
markedly increase criminal liability in this area. The narrower
interpretation of the statute, which applies the substantive part of
the statute in (a), appears to be the appropriate one to use.
Because we are reluctant to rely solely on
legislative history to eliminate ambiguity, however, we also look to
the quasi-constitutional rule of lenity, which counsels us to resolve
ambiguity in criminal statutes by construing them narrowly. The rule
of lenity fosters the fundamental principle of due process:
This practice [of resolving questions of the ambit
of criminal statutes in favor of lenity] reflects not merely a
convenient maxim of statutory construction. Rather, it is rooted in
fundamental principles of due process which mandate that no individual
be forced to speculate, at peril of indictment, whether his conduct is
Dunn v. United States, 442 U.S. 100, 112, 99 S.Ct.
2190, 60 L.Ed.2d 743, (1979). Its propriety was recently reaffirmed
by the Supreme Court in United States v. Granderson, 511 U.S. 39, 54,
114 S.Ct. 1259, 127 L.Ed.2d 611 (1994). The rule of lenity also
supports a narrow interpretation of this statute rather than the
imposition of potentially-unanticipated federal criminal liability.
Finally, this narrow interpretation accords with
the Sixth Circuit's decision in United States v. Weathers, 169 F.3d
336, 342 (6th Cir.1999). That court ignored the definition in (b)
because “the key prohibition creating the criminal offense is found in
subsection (a).” We agree.
In reviewing its sufficiency, we view the evidence
in the light most favorable to the verdict and affirm if a rational
trier of fact could find that the government proved all essential
elements beyond a reasonable doubt. United States v. Grossman, 117
F.3d 255, 258 (5th Cir.1997). The government's proof need not
exclude every reasonable hypothesis of innocence. United States v.
Haas, 171 F.3d 259, 265 (5th Cir.1999).
Though the interstate/foreign commerce requirement
in 18 U.S.C. § 1958 is jurisdictional, United States v. Edelman, 873
F.2d 791, 794-95 (5th Cir.1989), it is also an element of the offense.
United States v. Feola, 420 U.S. 671, 677 n. 9, 95 S.Ct. 1255, 43
L.Ed.2d 541 (1975). This circuit does require proof beyond a
reasonable doubt of interstate/foreign commerce. See, e.g., United
States v. Thompson, 130 F.3d 676, (5th Cir.1997), cert. denied, 524
U.S. 920, 118 S.Ct. 2307, 141 L.Ed.2d 166 (1998)(using beyond
reasonable doubt standard); United States v. Thompson, 130 F.3d 676,
688 (5th Cir.1997)(same).
Labeling this requirement “jurisdictional,”
however, does eliminate the need to prove scienter of that element.
United States v. Razo-Leora, 961 F.2d 1140, 1148 (5th Cir.1992). It
is enough that the proof showed interstate or foreign commerce in the
commission of the offense and that Cisneros had knowledge of the
nature of the offense that she promoted. Edelman, 873 F.2d at 795.
The government did not need to establish that Cisneros intended to
cause interstate/foreign commerce or even that she knew it occurred.
The government did present sufficient evidence for
a rational juror to conclude that Garza made international calls in
arranging the murder-for-hire for Cisneros. Garza testified that
from late 1992 until early 1993, he called Martinez four times from
Mexico, twice from San Fernando, and twice from Matamoros. He
explained that he made the calls from casetas and paid for them
immediately afterwards because collect calls from Mexico were
difficult to make.
During the calls, Garza would attempt to discuss
his marital problems, but Martinez would interrupt and ask whether he
had found someone to kill “the boy” for “her client.” Although Garza
initially lied to her about finding “men to do the job,” the urgency
of Martinez's demands did not diminish. During each of Garza's
calls, Martinez continued to press him to find assassins for “her
Cisneros makes two arguments in response. First,
she contends that Garza's testimony about the Mexico calls lacks
corroboration and contradicts Church's FBI report and testimony. It
is true that Church's report and testimony indicate that he believed
Garza told him the calls from Mexico to Martinez were collect, and
that Martinez's phone records did not show any such calls. Garza,
furthermore lacked any receipts proving they occurred.
The government's evidence, however, was
nevertheless sufficient to prove the international phone calls.
Credibility determinations are the exclusive province of the jury,
United States v. Ruiz, 987 F.2d 243, 250 (5th Cir.1993), and the jury
is entitled to choose among reasonable constructions of the evidence.
United States v. Thompson, 130 F.3d 676, 685-86 (5th Cir.1997). As
already explained, we read that evidence in the light most favorable
to the jury verdict. Grossman, 117 F.3d at 258.5
Here, Garza provided a reasonable explanation for why the calls were
not collect. Given his language difficulties, some confusion during
the interview with Church would be expected. Finally, Garza's lack
of a receipt for these calls five years, or even five minutes, after
they were made is not surprising. The conclusion that the calls were
made, therefore, is legally supportable. It is not our province to
become embroiled in a credibility debate between Church and Garza.
Second, Cisneros contends that the evidence did not
establish that she caused the telephone to be used “in furtherance” of
the murder-for-hire. With respect to causation, Edelman requires
simple “but for” causation rather than foreseeability: “It is enough,
therefore, that the proof showed the mails were in fact used in the
commission of that offense and that Edelman had knowledge of the
nature of the substantive offense which he promoted.” 873 F.2d at
794. Martinez would not have discussed the murder-for-hire with
Garza over the telephone but for Cisneros's request that Martinez find
someone to kill Fischer.
The “in furtherance” requirement is not the law in
this circuit. Instead, Edelman governs, and it requires that the use
of the facility be “in the commission of the offense.” 873 F.2d at
795. Even though Garza initiated the calls for an entirely different
purpose, Martinez nevertheless used a facility in foreign commerce,
the telephone, to discuss the murder. Cisneros's contention that
Garza's lie-that he had already found someone-actually hindered the
murder is not persuasive. Without Martinez's incessant reminders
during those calls, it is reasonable for a jury to have believed that
Garza would not have made as serious an effort to find a hit man.
Because these telephone calls satisfy the
interstate nexus requirement, we need not address the more complicated
issue, the car travel between Mexico and Texas.
Cisneros raises several other arguments on appeal,
none of which require reversal of her conviction.
Cisneros asks for a new trial based upon two
instances of the government eliciting testimony about state court
proceedings related to the murder. The trial court had issued an
order that prohibited eliciting testimony that Cisneros had been tried
for the offense in state court.
First, it is true that the government improperly
elicited testimony in violation of the order:
Q: Do you remember what you charged him [Garza]
A: Yes, sir.
Q: What was that?
A: Capital Murder.
Q: The same charge that you had charged Maria
Martinez and Dora Cisneros with?
Defense counsel immediately moved for a mistrial,
which the trial court denied.
We will not reverse the court's denial because it
was not an abuse of discretion. United States v. Krout, 56 F.3d 643,
647 (5th Cir.1995). “A new trial is required only if there is a
‘significant possibility’ that the prejudicial evidence had a
‘significant impact’ upon the jury verdict, viewed in light of the
entire record.” United States v. Layne, 43 F.3d 127, 134 (5th
Cir.1995). Simply stated, in a trial lasting seven days, any
prejudicial effect from this interchange is not enough to justify a
mistrial. The government spent almost five-and-a-half days
presenting a thorough case-in-chief. The defense, on the other hand,
used half a day to present its case.6
With such a gross imbalance of evidence in favor of the government,
it is hard to believe that the brief interchange above had any impact
on the jury's decision. Denial of a mistrial was not an abuse of
Second, the government elicited testimony six days
after this interchange that Garza had been convicted of capital murder
in the Fischer homicide. Defense counsel objected, and the trial
court overruled the objection. Cisneros now charges that the
government tried to get the jury to infer that since Garza and
Cisneros were both charged, and since Garza was convicted, that
Cisneros was also tried in state court.
The admission of this testimony was not an abuse of
discretion, since there was no chance of any “significant impact” on
the jury verdict. United States v. Morgan, 117 F.3d 849, 861 (5th
Cir.1997); Layne, 43 F.3d at 134. By itself, this testimony did not
violate the district court's order. The defense can only take issue
with the testimony by tying it to the earlier testimony about charges
against Cisneros. There is no reason to believe that the jury drew
such a connection to conclude that Cisneros had also been convicted.
The government had good reason, moreover, to ask Garza about his
conviction. The prosecutors wanted to minimize the effectiveness of
any cross-examination about the deal they had given him.
Cisneros next objects to denial of five of her
proposed jury instructions. We review refusal to include requested
instructions for an abuse of discretion. United States v. Storm, 36
F.3d 1289, 1294 (5th Cir.1994). Defendants are entitled to an
instruction as to any recognized defense for which there exists
evidence sufficient for a reasonable jury to find in their favor,
Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d
54 (1988). But refusal to include a requested instruction is
reversible error only if the requested instruction is substantially
correct, the actual charge given the jury did not substantially cover
the content of the proposed instruction, and the omission of the
proposed instruction would seriously impair the defendant's ability to
present a defense. United States v. Pettigrew, 77 F.3d 1500, 1510
Cisneros first sought to instruct the jury that the
interstate/foreign commerce connection had to have been “in
furtherance” of the murder-for-hire. Because this instruction is
taken from the First Circuit's decision in United States v. Houlihan,
92 F.3d 1271, 1292 (1st Cir.1996), rather than our decision in
Edelman, it is neither the law in this circuit nor substantially
correct. The court's refusal was appropriate.
The court instead explained to the jurors that to
find Cisneros guilty, they had to determine: “Number one, that
[Cisneros] caused another to travel in foreign or interstate commerce
or caused another to use a facility in foreign commerce” to find
Cisneros guilty. By setting out the causation requirement this
clearly, the court established that use of such a facility would have
to be the result of Cisneros's actions, and therefore in the
commission of the offense charged.
Cisneros's second proposal was a “theory of the
defense” instruction. What she requested was essentially an extended
instruction on the government's burden of proof. Since the district
court repeatedly emphasized that the government carried that burden,
its instruction covered Cisneros' desired instruction. Moreover, the
court's refusal did not hinder Cisneros' presentation of a defense in
Part of Cisneros's “theory of the defense”
instruction did go beyond restatement of the burden of proof. It set
forth Cisneros's position that any of Pizana's travel in foreign
commerce on March 2 was related to the stolen vehicle or drug
businesses, not the murder-for-hire. It also explained that Cisneros
believed any of Garza's calls to Martinez were made for the purpose of
discussing his marital difficulties. Since these represent mere
“judicially narrated accounts” of Cisneros's facts, their submission
to the jury was unnecessary. See Pettigrew, 77 F.3d at 1514.
Cisneros's third proposed instruction sought to
limit the jury's consideration of tape-recorded conversations between
Garza and Martinez and between Martinez and Cisneros.7
When the government offered those tapes into evidence, however,
Cisneros's counsel failed to object properly:
THE COURT: Any objection to the admission of the
MR. CANALES: No.
MR. CANALES: Multiple purposes of impeachment, I
MR. MOSBACKER: No, Your Honor. They are being
offered for purposes of rehabilitation of the witness and also for
completeness of the conversations.
THE COURT: There being no objections, all [the
tapes] are admitted into evidence.
Assuming that some portion of the tapes included
hearsay, Cisneros did not raise a timely objection to its admission.
She is required to do so under Fed.R.Evid. 103(a)(1). United States
v. Wake, 948 F.2d 1422, 1435 (5th Cir.1991). Without such an
objection, we review for plain error. Id. The admission of this
evidence, to the extent it was erroneous, did not seriously affect the
fairness, integrity, or public reputation of judicial proceedings,
especially since it was the defendant who first alluded to portions of
the tapes. See United States v. Olano, 507 U.S. 725, 731-36, 113
S.Ct. 1770, 123 L.Ed.2d 508 (1993).
Cisneros's fourth desired instruction was an
explanation of “causation” that she took from what we require for
federal mail fraud. This instruction charged that causation existed
when the defendant knew that the travel in or use of facilities in
interstate/foreign commerce would result, or that such a result was
reasonably foreseeable. Because this is not the law in the circuit
for 18 U.S.C. § 1958 under Edelman, the court's refusal to issue this
instruction was justified.
Cisneros's fifth instruction concerned the
five-year statute of limitations. Its omission did not impair
Cisneros's ability to present a defense because there was no defense
under the statute of limitations. It is well-recognized that the
time period begins to run when the crime is complete. Toussie v.
United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970).
And we have previously held that one of the elements of the federal
murder-for-hire offense is receipt of pecuniary value or a promise or
agreement to pay. United States v. Thompson, 130 F.3d 676, 688 (5th
In this case, Cisneros's indictment charged her
with “caus[ing] another to ․ use a facility in foreign commerce ․ with
the intent that the murder of Alebert Joseph (Joey) Fischer, Jr. be
committed ․ as consideration for a promise and agreement to pay, and
the receipt of, $3,000.” The crime, as charged and tried by the
government, was complete upon the receipt of the $3,000.00 payment.
The government presented uncontroverted testimony that Martinez paid
Garza $3,000 on the day of the murder, March 3, 1993. Cisneros was
indicted less than five years later, on February 23, 1998. The
statute of limitations, therefore, was not a defense available to
Cisneros's next argument, that the district court
erred in admitting the evidence of Fischer's murder under Fed.R.Evid.
403, is foreclosed by United States v. Hall, 152 F.3d 381, 400-403
(5th Cir.), cert. denied, 526 U.S. 1117, 119 S.Ct. 1767, 143 L.Ed.2d
797 (1999). Contrary to Cisneros's assertion, her offer to stipulate
to the shooting of Fischer did not reduce the probative value of
evidence of how Fischer's parents found their son, the pathologist's
testimony about Fischer's autopsy, or the photographs of Fischer's
corpse. This testimony and these pictures were not more gruesome or
more disturbing than those admitted in Hall or the cases cited
therein. See Hall, 152 F.3d at 401 (citations omitted). The
probative value of the challenged evidence, therefore, was not
substantially outweighed by the danger of unfair prejudice. See id.
We also reject Cisneros's argument that the
conviction should be reversed because the district court failed to
maintain an appearance of impartiality in its questioning of witnesses
and comments made during the trial. First, Cisneros contends that in
questioning Garza, the district court made the government's case
instead of merely clarifying the evidence. Second, Cisneros
maintains that the district court unfairly assisted the government in
overcoming objections. One was a hearsay objection to a police
officer's testimony about Ramiro Moya's involvement in Fischer's
murder, and the other was an objection to the form of the question
asking Moreno about Cuellar's state of mind after Palomares telephoned
to report the murder. Third, Cisneros argues that the court's
treatment of defense counsel exhibited favoritism in front of the
After reviewing the transcript, we cannot conclude
that the district court's behavior was so “prejudicial that it denied
the defendant a fair, as opposed to a perfect trial.” United States
v. Bermea, 30 F.3d 1539, 1569 (5th Cir.1994) (citations omitted).
The questions to the witnesses, periodic assistance to government
counsel, and occasional chastisement of defense counsel did not make
the trial unfair.
The first issue is the court's questioning of
witnesses. During trial, Garza explained that he had called Martinez
from San Fernando, 100 miles south of the Rio Grande. The district
court interjected and asked Garza if San Fernando was located in
Mexico and whether he had talked to Martinez from Mexico. Garza
answered both questions affirmatively. The court also asked Garza
whether he and Martinez had discussed “something else” beyond his
marital problems when he called her from Mexico. Garza replied that
the two had discussed whether he had found the “guys [that] she
[Martinez] wanted to cause harm to this boy.”
Garza later testified that he met Olivarez in
Dallas to tell him about “a lady in Brownsville who had ․ $3000.00 to
beat up or kill this person.” Garza then said he provided a picture
and address to help Olivarez identify Fischer. The district court
immediately asked Garza whether he had the picture during his initial
conversation with Olivarez in Dallas. The court also asked Garza
whether Olivarez agreed during the meeting to commit the murder.
Garza answered “whenever they would go to Brownsville.”
The district court's questions did not deny
Cisneros a fair trial. A trial court has the discretion to clarify
testimony, even if that elicits facts harmful to the defendant.
United States v. Saenz, 134 F.3d 697, 708 (5th Cir.1998) (citations
omitted). The district court may also bring out new facts through
its questioning. United States v. Cantu, 167 F.3d 198, 202 (5th
Cir.1999), cert. denied, 528 U.S. 818, 120 S.Ct. 58, 145 L.Ed.2d 50
(1999) (citations omitted). The trial court stayed within these
limits. Garza was a difficult witness to understand because of
problems with English. The court's questions were designed to
clarify his vague, confusing, and often incomplete statements.
The record further establishes that the court's
assistance in overcoming Cisneros's objections did not exhibit bias in
the government's favor. In both instances, the district court merely
instructed prosecutors to rephrase their questions. The district
court properly controlled the tempo of the trial so as to avoid
repetitious objections and to keep the proceeding moving forward.
See Bermea, 30 F.3d at 1570-71.
Finally, Cisneros points to several instances where
the court treated defense counsel with less than perfect courtesy.
Having examined the transcript, these do not go beyond acceptable
courtroom behavior, especially in the face of some of defense
In sum, we find that the district court's
intervention in the trial hardly rises to the level we found
objectionable in Saenz, 134 F.3d at 713-14. Indeed, nothing in the
district court's questions or comments “could have led the jury to a
predisposition of guilt by improperly confusing the functions of the
judge and the prosecutor.” Bermea, 30 F.3d at 1569 (citing United
States v. Samak, 7 F.3d 1196, 1197-98 (5th Cir.1993)).
The district court, moreover, twice instructed the
jury regarding the court's participation in the trial. We have
previously held that curative instructions such as this one ameliorate
potential prejudicial effect of a district court's comments or
questions. See Bermea, 30 F.3d at 1571-72 (citations omitted). At
the beginning of the trial as well as at the close of the evidence,
the district court explained to the jury that it did not have an
opinion about the case, and to disregard any statements that might
indicate otherwise. The court then charged the jury not to give the
court's question more or less weight than those of the lawyers.
Finally, the district court did not abuse its
discretion in admitting Moreno's testimony under the co-conspirator
exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E). Cisneros
argues that assuming arguendo there existed a conspiracy to kill
Fischer, the admission of Moreno's testimony under the co-conspirator
exception was in error because Moreno had no involvement in the
murder. We find this argument frivolous.
Moreno testified that he and Garza were both
employed in Cuellar's organization and that Palomares and Olivarez
acted as hit men for the organization. Moreno also acknowledged that
because he was a member of Cuellar's crime family,9
Cuellar told him about conversations with Garza concerning the
“Brownsville murder.” In early February 1993, Moreno accompanied
Garza to a Dallas gun shop where Garza bought a .38 Super-the same
type of pistol as the one used to shoot Fischer. The record further
shows that Moreno gave Garza the purchase money, which had been
supplied by Cuellar. Immediately after the sale, Moreno took
possession of the weapon and delivered it to Cuellar that same day.
Moreno later overheard a conversation between Palomares and Cuellar,
during which Palomares stated that he had killed a person in
Brownsville. Finally, Moreno stated that Palomares, Pizana, and
Olivarez were involved in the “Brownsville murder” and that the murder
was committed because of a contract Garza made with “a certain
The government met its burden of proving the
co-conspirator exception to the hearsay rule by a preponderance of the
evidence. See United States v. Narviz-Guerra, 148 F.3d 530, 536 (5th
Cir.), cert. denied, 525 U.S. 1046, 119 S.Ct. 601, 142 L.Ed.2d 543
(1998); United States v. Ruiz, 987 F.2d 243, 247 (5th Cir.), cert.
denied, 510 U.S. 855, 114 S.Ct. 163, 126 L.Ed.2d 123 (1993). Moreno
was integrally involved in the operations of Cuellar's organization,
the one that planned and executed Fischer's murder.
For the reasons stated herein, Cisneros's
conviction is in all respects
murder occurred in 1993. In 1994, the statute was amended to allow
for capital punishment when death resulted from a murder-for-hire.
Pub.L. 103-322, § 60003(a)(11), 108 Stat.1969, 2033 (1994).
observe that (b) does not include foreign commerce in its definition.
We treat this as an oversight, inasmuch as there is no discernible
reason for its omission, if (b) is intended to explain the substantive
provisions in (a).It also appears obvious that Congress made a mistake
in mixing the terms “of” and “in,” but it is not obvious which term
reflects congressional intent.
disagree with the approach taken in United States v. Coates, 949 F.2d
104, 105 (4th Cir.1991), which ignored the difference in the statute's
language between (a) and (b). The breadth of this statute and its
sister statute, § 1952, is the subject of an ongoing debate among the
circuit and district courts. See, e.g., United States v. Heacock, 31
F.3d 249, 254-55 (5th Cir.1994)(any use of the mails qualifies);
United States v. Barry, 888 F.2d 1092, 1095-97 (6th
Cir.1989)(requiring interstate use of the mail); United States v.
Riccardelli, 794 F.2d 829, 830-34 (2d Cir.1986)(any use of the mails
qualifies); Krantz v. United States, 1999 WL 557524 at *3-7
(E.D.N.Y.1999)(any use of mails qualifies); United States v. Paredes,
950 F.Supp. 584, 585-90 (S.D.N.Y.1996)(requiring interstate use of
case law establishes that telephones and automobiles are
instrumentalities of interstate commerce even when used solely for
intrastate purposes. See United States v. Hickman, 179 F.3d 230, 232
(5th Cir.1999)(holding that a car is an instrumentality of interstate
commerce); Dupuy v. Dupuy, 511 F.2d 641, 644 (5th Cir.1975)(holding
that intrastate use of phones qualifies as use of an instrumentality
of interstate commerce); United States v. Gilbert, 181 F.3d 152,
157-58 (1st Cir.1999)(holding that a telephone is an instrumentality
of interstate commerce, regardless of whether it is used in an
interstate manner); United States v. Weathers, 169 F.3d 336, 341 (6th
Cir.1999)(intrastate telephone calls qualify as use of instrumentality
of interstate commerce); United States v. Cobb, 144 F.3d 319, 322
(4th Cir.1998)(automobiles qualify as instrumentalities of interstate
commerce); United States v. Randolph, 93 F.3d 656, 660 (9th
Cir.1996)( “[C]ars are themselves instrumentalities of interstate
commerce.”).Of course, these cases all refer to “instrumentalities,”
not “facilities.” The case law is less clear when dealing with
statutes referring to “facilities of interstate commerce.” Some
cases seem to find that any use of a phone or car is enough without
discussing its intrastate or interstate character. See, e.g.,
Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 655 (8th
Cir.1982)(seemingly including any use of telephone); United States v.
Goldfarb, 643 F.2d 422, 426 (6th Cir.1981)(interpreting the Travel
Act). Others seem to require interstate or foreign use of such a
facility. See, e.g., Menendez v. United States, 393 F.2d 312, 314
(5th Cir.1968)(emphasizing that use of phone was “long distance”);
United States v. Markiewicz, 978 F.2d 786, 814 (2d
Cir.1992)(emphasizing that the phone call was international); United
States v. Smith, 789 F.2d 196, 203 (3d Cir.1986)(requiring interstate
travel).We believe, however, that the important distinction is between
the use of “of” and “in,” not between “instrumentality” and
“facility.” The Sixth Circuit analyzed this statute and reached the
same conclusion. United States v. Weathers, 169 F.3d 336, 341-42 (6th
Cir.1999). Our own circuit has not been bereft of discussions on the
subject. See United States v. Miles, 122 F.3d 235, 246 (5th
Cir.1997)(DeMoss, J., concurring) (distinguishing between “of” and
“in” interstate commerce). A “facility of interstate commerce” is
one by which interstate commerce is typically accomplished, regardless
of its use in a particular instance. Use of a “facility in
interstate commerce,” on the other hand, indicates that the facility
is “in” interstate commerce when it is being used in the particular
instance; in other words, a facility “in” interstate commerce has a
temporal element or requirement that a facility “of” interstate
5. This is
true even when the jury reaches a general verdict based on two
alternative theories. See Griffin v. United States, 502 U.S. 46,
49-51, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991)(holding the jury verdict
valid in this situation); United States v. Powers, 168 F.3d 741, 746
(5th Cir.1999)(evaluating sufficiency of the evidence with deference).
seventh day was spent on closing argument and jury instruction.
conversations related to the purpose behind money transfers between
Garza, Martinez, and Cisneros.
reliance on Old Chief v. United States, 519 U.S. 172, 183 n. 7, 117
S.Ct. 644, 136 L.Ed.2d 574 (1997) is misplaced. The Supreme Court
expressly noted that its holding was limited to cases involving proof
of felon status. Old Chief, 519 U.S. at 183 n. 7, 117 S.Ct. 644.
was an enforcer for Cuellar. He picked up drug money and delivered
drugs to Cuellar's stash houses.
E. GRADY JOLLY, Circuit Judge.